author: DiPENTIMA, J.

text:
    STATE OF CONNECTICUT v. KATHLEEN PAMELA LAVIGNE
    (AC 29098)
    DiPentima, Harper and Lavine, Js.

      Argued December 7, 2009
    officially released May 18, 2010

      Ruth Daniella Weissman, special public defender, for the appellant (defendant).

      Melissa L. Streeto, assistant state’s attorney, with whom, on the brief, were Kevin T. Kane, chief state’s attorney, and Brenda Hans, assistant state’s attorney, for the appellee (state).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

DiPENTIMA, J.

The defendant, Kathleen Pamela Lavi-gne, appeals from the judgment of conviction, rendered after a jury trial, of larceny in the second degree by embezzlement from a person who is sixty years of age or older in violation of General Statutes § 53a-123 (a) (5). On appeal, the defendant claims that (1) the evidence was insufficient for conviction, (2) the court’s instructions to the jury were improper and (3) § 53a-123 (a) (5) is unconstitutionally vague as applied to the circumstances of this case. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In February, 2002, the defendant went to Nashua, New Hampshire, to visit the home of the victim, her aunt, Cleopatra Matlis. Matlis, who was then eighty-seven years old, was bom in New Hampshire and had lived there until 2002. On or about February 19, 2002, Matlis left New Hampshire and traveled with the defendant to Connecticut. On that same date, before departing from New Hampshire, the defendant and Matlis visited two banks in Nashua. At the first bank, the defendant removed stock certificates from a safe deposit box. At the second bank, Fleet Bank, Matlis withdrew $10,000 in cash. Once in Connecticut, the defendant and Matlis visited other banks and created accounts that named them as joint account holders. These accounts were opened with money obtained from accounts that were previously in the name of Matlis alone, as well as the proceeds from the sale of stocks that had been in Matlis’ name. Two months later, on April 15, 2002, using Matlis’ money for the down payment, the defendant purchased a house in Ellington. The defendant and Matlis lived together in this new house. The state alleged that over the next several months, Matlis’ spending habits changed dramatically. Prior to that, between February 27 and March 4, 2002, Matlis cashed stock certificates that she had inherited from her father, totaling $134,063.49. On August 2,2002, the defendant executed a listing agreement with a realtor for the sale of Matlis’ home in Nashua.

On October 4, 2002, Matlis was diagnosed with primary degenerative dementia. On October 10, 2002, the Ellington Probate Court found that she was incapable of managing her affairs because of her dementia and that irreparable injury to her financial and legal affairs would result if a temporary conservator was not appointed. The Probate Court appointed attorney Steven Allen as the temporary conservator of her estate. On November 7, 2002, Allen accepted his appointment as permanent conservator of the estate and person of Matlis. Between October 10 and 22,2002, the defendant withdrew approximately $3307 from two checking accounts jointly held by Matlis and the defendant at Savings Bank of Manchester. Matlis died on November 18, 2002.

On January 25,2007, the state filed an amended information charging the defendant with five counts of larceny in the first degree in violation of General Statutes § 53a-122 (a) (2) and five counts of larceny in the second degree in violation of § 53a-123 (a) (2) and (5). A jury trial began on February 13,2007, and on March 27,2007, the defendant was found guilty of one count of larceny in the second degree in violation of § 53a-123 (a) (5). The court declared a mistrial as to the nine remaining counts. On May 30, 2007, the defendant was sentenced to five years imprisonment, execution suspended after six months, and five years probation. She also was required to pay $3307 restitution to the estate of Matlis as a condition of probation. This appeal followed.

I

First, the defendant claims that the evidence was insufficient to support her conviction under § 53a-123 (a) (5). More specifically, the defendant argues that the evidence was insufficient to prove that (1) an October 10, 2002 withdrawal took place, (2) the defendant was or should have been aware that the accounts had been put under the control of the Probate Corat, or that she did not dispense those funds for Matlis’ benefit and (3) the defendant did not remove the money intending to use it for the care of Matlis. We disagree.

“A claim of insufficient evidence implicates the constitutional right not to be convicted on inadequate proof. . . . We review this claim first as it may be dis-positive of the appeal . . . because a defendant convicted on insufficient evidence cannot be retried without violating the double jeopardy clause.” (Citations omitted; internal quotation marks omitted.) State v. Sitaras, 106 Conn. App. 493, 498-99, 942 A.2d 1071, cert. denied, 287 Conn. 906, 950 A.2d 1283 (2008).

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Atkins, 118 Conn. App. 520, 526, 984 A.2d 1088 (2009), cert. denied, 295 Conn. 906, 989 A.2d 119 (2010).

Furthermore, our Supreme Court has stated that “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. . . .

“[A]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [finder of fact], would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s] verdict of guilty.” (Internal quotation marks omitted.) State v. Calabrese, 279 Conn. 393, 402-403, 902 A.2d 1044 (2006).

“[W]e are mindful that the trier of fact is the arbiter of credibility.” State v. Wilson, 118 Conn. App. 556, 562, 984 A.2d 114 (2009). When presented with a challenge to the sufficiency of the evidence, we note that “[i]n considering the evidence introduced in a case, [triers of fact] are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Internal quotation marks omitted.) State v. Fauntleroy, 101 Conn. App. 144, 153, 921 A.2d 622 (2007).

Section 53a-123 (a) provides in relevant part: “A person is guilty of larceny in the second degree when he commits larceny, as defined in section 53a-119, and ... (5) the property, regardless of its nature or value, is obtained by embezzlement, false pretenses or false promise and the victim of such larceny is sixty years of age or older . . . .” General Statutes § 53a-119 provides in relevant part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Larceny includes, but is not limited to: (1) Embezzlement. A person commits embezzlement when he wrongfully appropriates to himself or to another property of another in his care or custody.” We will address each of the claims regarding insufficient evidence in turn.

A

The defendant first asserts that “no proof was offered” as to the October 10, 2002 withdrawal. The defendant argues that two of the state’s exhibits, specifically eighty-three and eighty-four, were insufficient to prove this fact and that because of this insufficiency, her conviction cannot stand. This claim warrants little discussion.

The defendant’s argument on this issue is limited to a single sentence: “Exhibits [eighty-three and eighty-four] fail to show that count ten’s allegation about a $1000 starter check on [October 10, 2002] ever took place.” The state asserts that the defendant’s argument is misplaced because the state’s case did not rest on an October 10, 2002 withdrawal and because its burden of proving count ten was satisfied by exhibit ninety-two. We agree. State’s exhibit ninety-two consists of bank records from two accounts held jointly by the defendant and Matlis at Savings Bank of Manchester showing: (1) a mortgage check for $1184.26 dated October 15, 2002, (2) a $600 cash withdrawal on October 17, 2002, (3) a check made out to “cash” for $1122.94 dated October 22, 2002, and (4) a check made out to “cash” for $445.85 dated October 22, 2002. Therefore, exhibit ninety-two is sufficient to show withdrawals in the amount that the defendant was charged with embezzling in count ten, that is, approximately $3307 between the dates October 10 and 22, 2002.

B

Next, the defendant claims that the evidence was insufficient to show that the defendant was or should have been aware that the Savings Bank of Manchester accounts had been put under the control of the Probate Court. We disagree.

Allen testified, as to persons deemed incompetent, that “the conservator acts in their stead and is in charge of all their affairs. There’s a conservator of estate, which handles all financial aspects for a person, and a conservator of person, which handles the health issues.” When asked if he met the defendant on October 14, 2002, Allen responded by stating: “I believe she was [present]. My notes in the file don’t reflect her attendance or nonattendance. My recollection is, I did meet with her several times in the hospital during that October time period.” In addition, in response to the inquiry of what he discussed with the defendant, he stated: “I believe I would have identified myself, told her what my role was and my responsibilities and that, in a sense, I was now legally in charge. Any previous powers of attorneys or other legal agreements had been overruled by the conservatorship.” Allen also testified that it would be in his normal course of business to ask family members such as the defendant about financial assets of a ward. Allen, however, was unable to testify with certainty as to the dates that he spoke with the defendant and the actual information that he discussed with the defendant. On the basis of this evidence, the jury heard sufficient evidence from which it could reasonably infer that the defendant knew that Maths’ assets, including her interest in the Savings Bank of Manchester account, were under the control of the conservator.

C

Last, the defendant alleges that the evidence was not sufficient to show that the money was appropriated wrongfully. More particularly, the defendant claims that the evidence was not sufficient to show that she removed the money not intending to benefit Matlis. In support of this claim, the defendant refers to the fact that Matlis was in the hospital and that the defendant expected that Matlis eventually would return to the defendant’s house, and, thus, the jury reasonably could have inferred that the money could have been intended for the upkeep of the house for Maths’ benefit.

A thorough review of the record reveals that the state presented sufficient evidence to show wrongful appropriation. Among other things, the evidence reflected the defendant’s interactions with Matlis, other family members, bank employees and other important witnesses from February, 2002, through Maths’ death in November, 2002; the character and habits of Maths; the circumstances surrounding the changes in Maths’ financial status throughout that time, including bank accounts, spending habits and stock holdings; and Maths’ physical and mental health throughout the relevant time period. Further, the state presented evidence to show that the defendant knew that Maths’ estate was under a conservatorship, that she had been notified of her duty to report to the conservator all accounts held by Maths, whether in joint or sole ownership, and that she did not do so. Therefore, we conclude that the jury heard sufficient evidence from which it reasonably could infer that the defendant withdrew the $3307 at issue from the joint bank accounts with the requisite wrongful intent to constitute the crime of larceny in the second degree.

n

The defendant next claims that the court’s instructions to the jury were improper because the defendant cannot be held criminally liable under § 53a-123 (a) (5) as a joint account holder of the account in question. More specifically, she argues that the court improperly instructed the jury to determine the ownership of the funds jointly held by her and Matlis. We do not agree.

The specific facts underlying the charge in count ten involve approximately $3307 that the state alleges the defendant wrongfully obtained between October 10 and 22, 2002, from two Savings Bank of Manchester accounts that were at that time jointly held by Matlis and the defendant.

The defendant concedes that the issue of instructional error was not raised at trial and requests review under the doctrine set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). A defendant can prevail on an unpreserved constitutional claim under Golding “only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id. “The first two [prongs of Golding] involve a determination of whether the claim is reviewable; the second two . . . involve a determination of whether the defendant may prevail.” (Internal quotation marks omitted.) State v. Peeler, 271 Conn. 338, 360, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d 110 (2005). We conclude that the claim is reviewable because the record is adequate to review the claim of instructional error, and the claim is of constitutional magnitude. See State v. DeJesus, 260 Conn. 466, 472-73, 797 A.2d 1101 (2002) (“[a]n improper instruction on an element of an offense ... is of constitutional dimension” [internal quotation marks omitted]).

“The standard of review for claims of instructional impropriety is well established, [individual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . Accordingly, [i]n reviewing a constitutional challenge to the trial court’s instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury. ... In other words, we must consider whether the instructions [in totality] are sufficiently correct in law, adapted to the issues and ample for the guidance of the jury.” (Internal quotation marks omitted.) State v. Wallace, 290 Conn. 261, 272-73, 962 A.2d 781 (2009).

The defendant cites General Statutes § 36a-290 for guidance, claiming that the bank protection statute does not prove that either party to the joint account had superior rights over the funds in the account. We agree that § 36a-290 and the case law interpreting the statute do not prove conclusively that either party has the right to withdraw funds from a jointly held bank account, but we conclude that the court properly instructed the jury on the law of joint accounts.

Prior to instructing the jury, the court engaged in a thorough discussion with counsel, outside the presence of the jury, regarding the portion of the instructions related to the issue of the law regarding joint accounts. It then charged the jury regarding the rights of joint account holders as follows: “Owner means not only the true or lawful owner, but any person who has a superior right to that of the offender. ... A joint owner or a common owner of property would not be guilty of larceny of that property where he or she took it from the other owner. ... To appropriate property of another to one’s self or a third person means to exercise control over it or to aid a third person to exercise control over it permanently or for so extended a period or under such circumstances as to acquire the major portion of the economic value or benefit, or to dispose of the property for the benefit of one’s self or a third person. Now, in this case there is evidence that money belonging to . . . Matlis was deposited into joint bank accounts between the defendant and . . . Matlis. Under Connecticut law, money deposited into a joint bank account does not necessarily equate to joint ownership. The statute governing joint bank accounts is one that was written to provide joint access to money in these accounts and to protect the banks from claims when one joint account owner withdraws funds from the joint account. It does not, in and of itself, determine ownership interests in the disputed funds.”

Section 36a-290, the section of our banking statutes that governs joint deposit and share accounts, “provides that, when an account is created in the names of two or more people, such account is deemed a joint account, and any part or all of the balance of such account, including any and all subsequent deposits or additions made thereto, may be paid to any of such persons during the lifetime of all of them .... Thus, under this statute, a bank is authorized to release up to the entire balance of a joint account to each and any coholder who so demands. . . . [T]his authorization not only provides protection for payor banks but also recognizes a sufficient property interest in each coholder to warrant characterizing all such deposits as a debt due to each coholder sufficient to trigger a third party creditor’s statutory right to execute against the entire balance of the joint account.” (Citation omitted; internal quotation marks omitted.) Fleet Bank Connecticut, N.A. v. Carillo, 240 Conn. 343, 349-50, 691 A.2d 1068 (1997). In Durso v. Vessichio, 79 Conn. App. 112, 828 A.2d 1280 (2003), however, this court held that “§ 36a-290 (a) recognizes the account holder’s right to the moneys as a debt due by the bank. It does not recognize an account holder’s rights to the moneys as between holders.” (Emphasis added.) Id., 117; see also Grodzicki v. Grodzicki, 154 Conn. 456, 463, 226 A.2d 656 (1967) (“language of [General Statutes § 36-3, the predecessor of § 36a-290] does not determine the respective rights of the parties inter vivos”).

Upon a search of Connecticut law, we are unable to find any case law that further expounds on the issue of the legal rights to funds between joint account holders. Therefore, the question of the defendant’s actual ownership right to funds as a joint account holder is a question of fact. Here, the question as to whether the defendant had the ownership right to remove the money from the accounts or if it was an intentional wrongful appropriation of the funds was an issue for the jury to decide. Accordingly, we conclude that the court’s instructions did not mislead the jury, and, thus, this claim fails under the third prong of Golding.

Ill

Finally, the defendant claims that § 53a-123 (a) (5) is unconstitutionally vague as applied in this case. Specifically, the defendant argues that she was charged with embezzlement from the estate, and not the person, of Maths, and that § 53a-123 (a) (5) does not contemplate the charge of embezzlement against an estate. The defendant again failed to raise this claim at trial and seeks to prevail pursuant to State v. Golding, supra, 213 Conn. 239-40. We will review his claim under Golding because the record is adequate for review and a claim that a statute is unconstitutionally vague implicates the defendant’s fundamental due process right to fair warning. See State v. Coleman, 83 Conn. App. 672, 676-77, 851 A.2d 329, cert. denied, 271 Conn. 910, 859 A.2d 571 (2004), cert. denied, 544 U.S. 1050, 125 S. Ct. 2290, 161 L. Ed. 2d 1091 (2005). We conclude, however, that there was no constitutional violation because the statute is not vague as applied to the circumstances of the present case.

We begin by setting forth the relevant legal principles. “The void for vagueness doctrine is a procedural due process concept that originally was derived from the guarantees of due process contained in the fifth and fourteenth amendments to the United States constitution. . . . The constitutional injunction that is commonly referred to as the void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute or regulation and the guarantee against standardless law enforcement. ... If the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since [mjany statutes will have some inherent vagueness, for [i]n most English words and phrases there lurk uncertainties. . . . For statutes that do not implicate the especially sensitive concerns embodied in the first amendment, we determine the constitutionality of a statute under attack for vagueness by considering its applicability to the particular facts at issue. . . .

“In challenging the constitutionality of a statute, the defendant bears a heavy burden. To prevail on his vagueness claim, [t]he defendant must demonstrate beyond a reasonable doubt that the statute, as applied to him, deprived him of adequate notice of what conduct the statute proscribed or that he fell victim to arbitrary and discriminatory enforcement. . . . The proper test for determining [whether] a statute is vague as applied is whether a reasonable person would have anticipated that the statute would apply to his or her particular conduct. . . . The test is objectively applied to the actor’s conduct and judged by a reasonable person’s reading of the statute ....

“If the language of a statute fails to provide definite notice of prohibited conduct, fair warning can be provided by prior judicial opinions involving the statute ... or by an examination of whether a person of ordinary intelligence would reasonably know what acts are permitted or prohibited by the use of his common sense and ordinary understanding.” (Citations omitted; internal quotation marks omitted.) State v. Maurice M., 116 Conn. App. 1, 6-7, 975 A.2d 90, cert. granted on other grounds, 293 Conn. 926, 980 A.2d 913 (2009).

Section 53a-123 (a) provides in relevant part: “A person is guilty of larceny in the second degree when he commits larceny, as defined in section 53a-119, and ... (5) the property, regardless of its nature or value, is obtained by embezzlement, false pretenses or false promise and the victim of such larceny is sixty years of age or older . . . .” The defendant claims that because “[a] probate estate is not a person over the age of sixty,” she cannot be convicted under this statute. Because it is not the form in which the property is held, but to whom it belongs that is determinative, we find no merit to this claim.

A conservator of the estate is defined as “a person . . . appointed by the Court of Probate under the provisions of sections 45a-644 to 45a-663, inclusive, to supervise the financial affairs of a person found to be incapable of managing his or her own affairs . . . and includes a temporary conservator of the estate appointed under the provisions of section 45a-654.” General Statutes § 45a-644 (a). The purpose of a conser-vatorship is to “ensure that the legal disability imposed will not undermine adequate protection of a ward’s interest.” Cottrell v. Connecticut Bank & Trust Co., 175 Conn. 257, 264, 398 A.2d 307 (1978). Thus, because a conservatorship estate is formed for the purpose of protecting the assets of a person who is incapable of managing his or her financial affairs, it follows that § 53a-123 (a) (5) prohibits embezzlement from an estate of a person sixty years of age or older. We conclude that the statutory language afforded the defendant sufficient notice that § 53a-123 (a) (5) applies to conduct that occurred after a conservator had been appointed for the estate of Matlis. Accordingly, we conclude that this claim fails under the third prong of Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also claims, in the alternative, that a violation of § 53a-123 (a) (5) was a “legal impossibility.” We decline to review this claim. Because the defendant simply relies on the argument she makes for her void for vagueness claim without any additional legal analysis, it is briefed inadequately. See State v. Clark, 255 Conn. 268, 281 n.30, 764 A.2d 1251 (2001) (“[c]laims on appeal that are inadequately briefed are deemed abandoned” [internal quotation marks omitted]).

       An earlier trial, which had begun on October 23, 2006, resulted in a mistrial.

       At the close of the state’s case, the defendant moved for a judgment of acquittal on all charges. That motion was denied, as was the renewed motion made at the completion of all the evidence.

       Exhibit eighty-three consists of bank records for Savings Bank of Manchester Gold Money Market Account 9501348911 ranging from March 7 through October 25, 2002. The monthly statement for October 25, 2002, shows a check written for $1000 on October 10, 2002, but the check image is unavailable. It also shows a check for $1122.94 made out to “cash” on October 22, 2002. Exhibit eighty-four consists of additional bank records, specifically, copies of checks written against Savings Bank of Manchester Money Market Account 9501348984.

       The defendant also seems to make a separate claim that the evidence was insufficient to show that the defendant did not remove the funds from the Savings Bank of Manchester account for Matlis’ benefit. This claim is based on the same facts and legal principles as the claim that the evidence was not sufficient to show that the defendant did not remove the money with the intent to care for Matlis. Therefore, we consider both claims as included in this analysis.

       General Statutes § 36a-290 provides in relevant part: “(a) When a deposit account has been established at any bank, or a share account has been established at any Connecticut credit union or federal credit union, in the names of two or more natural persons and under such terms as to be paid to any one of them, or to the survivor or survivors of them, such account is deemed ajoint account, and any part or all of the balance of such account, including any and all subsequent deposits or additions made thereto, may be paid to any of such persons during the lifetime of all of them or to the survivor or any of the survivors of such persons after the death of one or more of them. Any such payment constitutes a valid and sufficient release and discharge of such bank, Connecticut credit union or federal credit union, or its successor, as to all payments so made.
      “(b) The establishment of a deposit account or share account which is a joint account under subsection (a) of this section is, in the absence of fraud or undue influence, or other clear and convincing evidence to the contrary, prima facie evidence of the intention of all of the named owners thereof to vest title to such account, including all subsequent deposits and additions made thereto, in such survivor or survivors, in any action or proceeding between any two or more of the depositors, respecting the ownership of such account or its proceeds. ...”


source: Caselaw Access Project

author: PELLEGRINO, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. MICHAEL MOODY
    (AC 30031)
    Flynn, C. J., and Beach and Pellegrino, Js.

    Argued February 9
    officially released May 18, 2010

      Elizabeth M. Inkster, senior assistant public defender, with whom was Mirza Refai Arefin, certified legal intern, for the appellant (defendant).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Robert J. O’Brien, supervisory assistant state’s attorney, for the appellee (state).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

PELLEGRINO, J.

The defendant, Michael Moody, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (1). On appeal, the defendant claims that (1) the trial court improperly instructed the jury on self-defense, and (2) there was insufficient evidence to disprove his claim that he stabbed the victim, Alonza Staton, in self-defense. We disagree and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The events in question occurred in New Haven at about 8 p.m. on May 14, 2006, outside an after-hours social club at 232 Shelton Avenue. The victim testified that he had consumed shots of alcohol, drank some beer and likely used heroin that day. During the evening, he picked up his friend, Seileck Jeffrey, and they drove to the social club, where they had a few drinks. Upon exiting the club, the victim encountered his former girlfriend, Robyn McLaurin, who is also the mother of the victim’s two children. The defendant, who was McLaur-in’s boyfriend at the time, was sitting in a vehicle parked in front of the club. The victim stated to McLaurin, “I hope you ain’t starting to beat my car up again.” McLaurin responded that she had not damaged his car and subsequently got into the defendant’s vehicle.

Thereafter, the defendant exited his vehicle and approached the unarmed victim, causing an argument and eventually a scuffle to ensue. After the scuffle was broken up, the defendant returned to his vehicle. At that point, the victim attempted to remove the license plate from the defendant’s car. The defendant retrieved from his car a sharp object and approached the victim. The scuffle between the two resumed, during which the victim’s jacket was pulled over his head. The defendant then stabbed the victim in the abdomen with the sharp object. Jeffrey testified that he attempted to break up the fight, that he did not have a weapon that day and that he never saw the victim with a weapon. After leaning the victim against a vehicle in the parking lot, Jeffrey left the scene because the victim’s “guts [were] spilling out” and he “didn’t want to stick around for that.” Immediately after the stabbing, but before police and emergency personnel arrived, the defendant got back into his car and left the scene. Other witness testimony supported this general chronology of events.

After the defendant stabbed the victim, he got into his car and left New Haven. At 1:24 a.m., while driving in East Hartford, he was stopped by police and charged with driving while intoxicated. He was found to have a blood alcohol level of 0.184, well above the legal limit of 0.08. When he was released by East Hartford police, he traveled to Worcester, Massachusetts, where he stayed with friends for several days before returning to Connecticut.

The defendant, who testified at trial, maintained that his actions that evening were in self-defense. According to the defendant, the victim and Jeffrey were both attacking him during the altercation, repeatedly kicking and punching him for several minutes. The defendant asserted that the men would not let him escape, and after several minutes of fighting, the victim pulled out a knife. The defendant stated that it was at that point that he pulled out a pocketknife and opened it. According to the defendant, he knew that the victim “had a history of violence,” and McLaurin had told the defendant that the victim had stabbed her before. The defendant stated that it was only after the victim attempted to stab him that he stabbed the victim with the pocketknife in self-defense.

After listening to the aforementioned evidence, the jury found the defendant guilty of one count of assault in the first degree. He was sentenced to a term of ten years imprisonment, execution suspended after five years, with five years of probation. The defendant appeals from that conviction. Additional facts and procedural history will be provided as necessary.

I

The defendant claims that the court improperly instructed the jury in that the charge was likely to have misled the jury to believe that it was not the burden of the state to disprove the defendant’s claim of self-defense. We disagree.

During its charge, the court delivered the following relevant instructions to the jury: “Now, if the state proves all the elements of assault in the first degree, you must then consider self-defense before you can return a verdict of guilty. Self-defense is a complete defense to the charge of assault in the first degree. If the state does not disprove beyond a reasonable doubt that the defendant was justified in using deadly physical force, then you must find the defendant not guilty even if you have found that all the elements of assault in the first degree have been proven to you by the state. If the state proves all the elements of assault in the first degree and also disproves beyond a reasonable doubt that the defendant was justified in using deadly physical force, then you must find the defendant guilty of assault in the first degree. . . .

“In claiming that he acted in self-defense, the defendant is claiming that his use of deadly physical force was justified. The parties agree that deadly physical force was used; that’s not an issue for you. Self-defense is a means by which the law justifies the use of deadly physical force that would otherwise be criminal or illegal. Once self-defense is raised in a case, the state must disprove the defense beyond a reasonable doubt. The defendant has no burden of proof at all with respect to the issue of self-defense.

“On the issue of self-defense, there is a Connecticut statute entitled use of physical force in the defense of person, and insofar as it is applicable here it provides as follows: ‘A person is justified in using reasonable physical force upon a person to defend himself from what he reasonably believes to be the imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for that purpose except that deadly physical force may not be used unless the actor reasonably believes that such other person is using or about to use deadly physical force or inflict or about to inflict great bodily harm.

“A person is justified in the use of deadly physical force upon another when he actually or reasonably believes that such force is necessary to protect himself from another person who was using or about to use deadly physical force against him or who was inflicting or about to inflict great bodily harm upon him. ” (Emphasis added.)

After the court provided the jury with the aforementioned instruction, the court went on to discuss, in detail, six circumstances in which a person would not be justified in using deadly physical force. It is the following language that the defendant challenges: “In deciding whether or not the state has proved beyond a reasonable doubt that the defendant was not justified in using deadly physical force, you will first focus on the defendant. You will first focus on what he subjectively and actually believed at the time he used such force. If you find that the state has proven beyond a reasonable doubt that the defendant did not subjectively and actually believe that another person was using or about to use deadly physical force against him or inflicting or about to inflict great bodily harm upon him, the defendant’s self-defense claim must fail. . . .

“If, however, you determine that the defendant did subjectively and actually hold such belief, you will then consider under the second circumstance under which the use of deadly physical force is not justified. Under the second circumstance, you will focus on whether the defendant’s belief that another person was using or about to use deadly physical force upon him or was inflicting or about to inflict great bodily harm upon him was reasonable under all of the circumstances that existed when the defendant used deadly physical force. . . .

“If you find that the state has proven beyond a reasonable doubt that the defendant’s belief that another person was using or about to use deadly physical force against him or inflicting or about to inflict great bodily harm, upon him was not reasonable, then the defendant’s claim of self-defense must fail. If, however, you determine that such belief was reasonably held by the defendant, then you must consider the third circumstance under which the use of deadly physical force was not justified. Under the third circumstance, you will focus on whether or not at the time the defendant used deadly physical force he subjectively and actually believed that such level of force was necessary to defend himself. If you find that the state has proven beyond a reasonable doubt that the defendant did not subjectively and actually believe that he needed to use deadly physical force, then the defendant’s self-defense claim must fail.

“If, however, you determine that the defendant did subjectively and actually believe that he needed to use deadly physical force, then under the fourth circumstance you must determine whether the defendant’s actual belief that he needed to use deadly physical force was objectively reasonable under all the circumstances existing when he used such force. . . .

“If, however, you determine that the defendant’s belief in the need to use deadly physical force was reasonable under the circumstances, that is, a reasonable person in the defendant’s circumstances would have shared that belief, then you would go on to consider the fifth circumstance under which the use of deadly physical force is not justified.”

The defendant claims that the court likely misled the jury and deprived him of his right to a fair trial when it diluted the state’s burden of proof by essentially requiring the jury to make affirmative findings as to whether to credit the defendant’s self-defense claim. According to the defendant, by using the language “if, however, you determine,” the court’s instruction required the jury to determine whether he subjectively and actually believed that he needed to use deadly physical force. We disagree.

The record reveals that the parties were provided copies of the proposed instructions the day before they were given to the jury and an opportunity to object. Following the court’s charge, the defendant did not take exception to the court’s proposed instruction on self-defense. Acknowledging that the claim of instructional error is unpreserved; see Practice Book § 16-20; the defendant affirmatively has requested review under the doctrine set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and has analyzed his claim pursuant to this doctrine in his principal appellate brief. We will review the claim under Golding because the record is adequate for review, and the claim that the court improperly diluted the state’s burden of persuasion in proving self-defense is of constitutional magnitude. See, e.g., State v. Prioleau, 235 Conn. 274, 284, 664 A.2d 743 (1995) (“[a]n improper instruction on a defense, like an improper instruction on an element of an offense, is of constitutional dimension” [internal quotation marks omitted]).

Recently, in State v. Ebron, 292 Conn. 656, 682, 975 A.2d 17 (2009), our Supreme Court held that an appellant will not be deemed to have waived a claim of instructional error unless the record shows that he “actively induced the trial court to give the . . . instruction that he . . . challenges on appeal . . . .” Following Ebron, a party will have waived an objection to instructional language if he or she has “actively induce [d] the trial court to act on the challenged portion of the instruction.” Id., 680. The court discussed active inducement in terms of an appellant having supplied or otherwise advocated for the very instructional language at issue in the appeal. Id., 681-82.

In the present case, the court, one day in advance of its charge, provided copies of its draft charge to the parties and afforded the parties an opportunity to review the draft charge. After reviewing the charge, and after the court delivered its instructions to the jury, the defendant failed to object to any portion of the charge. The court took the necessary practical steps to ensure that the parties had an opportunity to state objections to its instructions while there was still an opportunity at trial to correct any errors or omissions in the charge. See State v. Reynolds, 118 Conn. App. 278, 305 n.7, 983 A.2d 874 (2009) (discussing purpose of charging conference as it relates to avoiding retrials arising out of instructional errors and precluding appellants from raising claims for first time on appeal). Nonetheless, despite having failed to object to the court’s instruction, the defendant’s attorney did not actively induce the court to deliver its instruction. Accordingly, following the rationale set forth in Ebron, we conclude that the representations of the defendant’s attorney and failure to object did not constitute a waiver of the present claim.

“The standard of review for claims of instructional impropriety is well established, [individual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . Accordingly, [i]n reviewing a constitutional challenge to the trial court’s instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury. ... In other words, we must consider whether the instructions [in totality] are sufficiently correct in law, adapted to the issues and ample for the guidance of the jury.” (Internal quotation marks omitted.) State v. Wallace, 290 Conn. 261, 272-73, 962 A.2d 781 (2009).

The defendant cannot prevail under the third prong of Golding. The charge very clearly stated, in numerous places, that the state had the burden to disprove self-defense beyond a reasonable doubt and that the defendant had no burden at all with respect to his justification defense. The defendant takes issue with the middle portion of the self-defense charge, in which the court outlined the six circumstances, if proven beyond a reasonable doubt, that a person would not be justified in his use of deadly force. The defendant argues that, specifically, the use of the phrase “if, however, you determine” imposed an obligation on the jury to reach affirmative conclusions of fact that were solely the state’s burden to prove.

Although the defendant’s argument regarding the court’s use of the word “determine” might have merit if viewed in isolation, we cannot conclude, given the entirety of the court’s comprehensive and carefully worded charge, that it is reasonably possible that the instruction misled the jury. The jury was given exhaustive instructions that the defendant had no burden of proof, that the burden rested solely with the state to disprove the defense beyond a reasonable doubt and that, if the state failed to sustain that burden, the jury must find the defendant not guilty. “[A] challenged jury charge is to be read as a whole . . . and judged by its total effect rather than by its individual component parts. . . . The tendency of an irrelevant instruction to mislead the jury instead must be considered in the context of the whole charge.” (Citations omitted; internal quotation marks omitted.) State v. Montanez, 277 Conn. 735, 746, 894 A.2d 928 (2006). Accordingly, we conclude that the defendant has failed to demonstrate that a constitutional violation clearly exists that deprived him of a fair trial, and, therefore, the claim must fail under the third prong of Golding.

II

The defendant next claims that the evidence presented at trial was insufficient to allow the jury reasonably to conclude that the state met its burden of disproving self-defense beyond a reasonable doubt. In support of his claim, the defendant argues that the state’s case consisted largely of contradictory testimony by witnesses who have histories of assault and crimes of dishonesty and that the state’s proof on the defendant’s justification defense failed to disprove that defense beyond a reasonable doubt. The defendant’s challenge is primarily a challenge to the credibility of the state’s witnesses rather than to the sufficiency of the evidence. Therefore, the defendant’s claim must fail.

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

“We note that the [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. . . . Our review of factual determinations is limited to whether those findings are clearly erroneous. . . . 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.” (Citations omitted; internal quotation marks omitted.) State v. Liborio A., 93 Conn. App. 279, 283-84, 889 A.2d 821 (2006).

Here, the defendant’s claim, though labeled as a challenge to the sufficiency of the evidence, rests on an assessment of the witnesses’ credibility. The defendant claims that several witnesses’ credibility cannot be sustained because their account of what happened should not be believed. When construed in the light most favorable to sustaining the verdict, the jury reasonably could have concluded that the defendant did not act in self-defense.

The defendant essentially argues that the state’s principal witnesses were not credible, and, therefore, the jury should have believed his version of the events. The jury reasonably could have relied on the testimony of the victim, Jeffrey or Teethenia Stroud to find that the state had met its burden of proving that the defendant was not justified in stabbing the victim. The jury reasonably could have concluded from the testimony of the state’s witnesses that the defendant did, in fact, retreat to the safety of his car before choosing to re-engage the victim with the knife that he had retrieved from his vehicle. Accordingly, the defendant’s claim must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       The victim believed that on previous occasions, McLaurin had flattened his car’s tires, broken his car’s antenna and scratched his car up with a key.

       The victim stated that he saw the object and described it as a butcher knife.

       Teethenia Stroud testified that she witnessed the altercation outside the club. She corroborated the victim’s version of events, which was that after the initial altercation, the defendant went back to his car and then approached the victim a second time, at which point the stabbing occurred.

       The court’s charge on self-defense included additional detailed instructions that have not been reproduced in this opinion.

       At trial, the following colloquy occurred: “The Court: Now, while I have you both on the record, let me ask you one question. I know we’ve had some preliminary charging conferences; in fact, I’ve given you both copies of the boilerplate that the court will use on the charge of assault and also the defense of justification. The Practice Book has a section, gentlemen, and I just want to make sure we’re all on the same wavelength, § 42-19. ‘After the close of evidence but before arguments to the jury, the judicial authority shall, if requested, inform counsel out of the presence of the jury [of] the substance of [its] proposed instructions. The charg[e] conference shall be on the record or summarized on the record.’ Are any of you requesting that we have that conference on the record or summarized on the record?
      “[Defense Counsel]: No, Your Honor. As far as I’m concerned, we’ve had it.
      “The Court: All right.
      “[The Prosecutor]: Yes, Your Honor.”


author: BISHOP, J. WEST, J.,

text:
    ANNE MARIE ROY v. ANDREW G. BACHMANN ET AL.
    (AC 30522)
    Bishop, Harper and West, Js.
    Argued October 23, 2009
    officially released May 18, 2010

      Anthony V. Federice, for the appellants (named plaintiff et al.).

      Christopher L. Goings, with whom, on the brief, was Collin Seguin, certified legal intern, for the appellees (defendants).
   Opinion

BISHOP, J.

In this appeal, we must determine whether the exclusivity rule of the Workers’ Compensation Act (act); General Statutes § 31-275 et seq.; shields the owners of a parking lot that they leased to a corporation, in which they were majority stockholders and officers, from liability for damages arising from injuries sustained by an employee of the corporation during the course of her employment. The plaintiffs Anne Marie Roy and Steven Roy appeal from the summary judgment rendered by the trial court in favor of the defendants, Andrew G. Bachmann and Jane B. Bachmann. The plaintiffs contend that the court improperly determined that the defendants were Anne Marie Roy’s employer and that, accordingly, their action was barred by the exclusivity provision of the act. Although the court accurately concluded that Connecticut has rejected the dual capacity doctrine as an exception to the exclusivity rule, it should not have been a factor in the court’s reasoning because the record unequivocally reveals that Anne Marie Roy’s employer was the Dymax Corporation (Dymax) at the time of her injury. We conclude that, because the defendants were not covered by the exclusivity provision of the act as Anne Marie Roy’s employer, summary judgment should not have been granted. Accordingly, we reverse the judgment of the trial court.

The record reveals the following undisputed facts and procedural history. On September 12, 2005, Anne Marie Roy was employed by Dymax. On that date, she sustained injuries, including a fractured hip, when she fell in the parking lot located at 51 Greenwoods Road, Torrington—Dymax’ place of business. At the time of the incident that led to her injuries, Anne Marie Roy was in the course of her employment with Dymax. She was paid benefits under our workers’ compensation statutory scheme by Dymax. The defendants owned the parcel of land located at 51 Greenwoods Road and leased it to Dymax. The plaintiffs brought this action against the defendants, alleging negligence and loss of consortium. On July 23, 2008, the defendants moved for summary judgment on the ground that the plaintiffs’ action was barred by the exclusivity rule of the act. By memorandum of decision filed October 27, 2008, the court granted the defendants’ motion for summary judgment and rendered judgment in their favor. The plaintiffs filed a motion to reargue, which the court denied. This appeal followed. Additional facts will be set forth as necessary.

As a preliminary matter, we set forth the well settled standard of review applicable to a trial court’s decision to grant a motion for summary judgment. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . .

“[T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment. . . . [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist. . . . On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . Our review of the trial court’s decision to grant the defendant’s motion for summary judgment is plenary.” (Citations omitted; internal quotation marks omitted.) Keller v. Beckenstein, 117 Conn. App. 550, 556-58, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009).

Connecticut’s statutory scheme for workers’ compensation provides a framework for an employee who sustains a work-related injury to receive prescribed benefits without having to prove fault. In return, the employee is barred from bringing a third party claim against either a fellow employee or the employer. See General Statutes § 31-284 et seq. The trade-off between an employee who sustains a work-related injury and the employer does not prevent such an employee from bringing an action against a third party tortfeasor. Indeed, General Statutes § 31-293 provides that an employer who has paid workers’ compensation benefits may intervene in any such action in order to seek recovery of the amounts paid to the employee from any judgment he or she may obtain in the third party action.

In our statutory workers’ compensation scheme there are only two exceptions to the act’s exclusivity provision. According to the terms of General Statutes § 31-293a, the right to workers’ compensation is an employee’s exclusive remedy “unless such wrong was wilful or malicious or the action is based on the fellow employee’s negligence in the operation of a motor vehicle as defined in section 14-1. . . .’’Additionally, our Supreme Court has recognized exceptions for a minor who has been illegally employed; see Blancato v. Feldspar Corp., 203 Conn. 34, 522 A.2d 1235 (1987); and for intentional torts committed by an employer upon an employee. See Jett v. Dunlap, 179 Conn. 215, 425 A.2d 1263 (1979), as further elucidated in Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994).

Some other states, but not Connecticut, have recognized an additional exception to the exclusivity provisions of their workers’ compensation laws to permit a third party action against an employer or fellow employee who causes injury to an employee while the employer or fellow employee is acting in a nonemployment capacity. This exception, known as the dual capacity doctrine, is implicated only when the liability defendant is the employer or a fellow employee, both otherwise immune from tort liability by the exclusivity provisions of workers’ compensation statutes. Cases dealing with the dual capacity doctrine make it plain that it only comes into play when an employee brings a third party claim against his or her employer or fellow employee. Noted workers’ compensation commentator Arthur Larson has described the dual capacity doctrine as follows: “An employer may become a third person, vulnerable to tort suit by an employee, if—and only if—it possesses a second persona so completely independent from and unrelated to its status as employer that by established standards the law recognizes that persona as a separate legal person.” 6 A. Larson, Workers’ Compensation Law (2009) § 113.01 [1]. It is central to the cases involving the dual capacity doctrine that the identity of the defendant as the employer or fellow employee is not questioned. The issue in these cases, rather, is whether, in spite of the exclusivity provisions of workers’ compensation law, the defendant may yet be liable in some other capacity than that of employer or fellow employee.

In Panaro v. Electrolux Corp., 208 Conn. 589, 593, 545 A.2d 1086 (1988), our Supreme Court expressly rejected the dual capacity doctrine in a case involving both a fellow employee and the employer. Thus, if this were a case in which the defendants were the employer seeking the protection of the exclusivity provision of the act, and the plaintiffs were seeking an exception to that exclusivity provision on the basis of the dual capacity doctrine, the court’s rendering of summary judgment would have been appropriate. However, because Anne Marie Roy was employed by Dymax and not the defendants, her claim against the defendants is not one against her employer at all. Thus, the dual capacity doctrine should have played no role in the court’s summary disposition.

At the time of her injury, Anne Marie Roy was employed by Dymax, which, as her employer, paid her workers’ compensation benefits. These facts were alleged by Anne Marie Roy in her substituted complaint and admitted by the defendants. Additionally, the record reveals that the employer is Dymax, a Connecticut stock corporation with sixty-one shareholders holding an aggregate of 386,846 shares of outstanding stock. Between them, the defendants own 265,358 shares of stock. Notwithstanding these allegations and admissions, the court found that the defendants were Anne Marie Roy’s employer at the time of her injury, and, as such, were entitled to the benefit of the exclusivity provision of the act. In rendering summary judgment, the court appears to have ignored the plaintiffs’ allegations and the defendants’ corresponding admissions. The court also appears to have incorrectly equated the defendants with Dymax on the basis of their officer status and majority holdings in the corporation. We know of no legal authority for such a conclusion. To the extent that the court conflated the defendants with Dymax, it incorrectly engaged in fact-finding, a function not appropriate for summary disposition.

In sum, the trial court misconstrued the plaintiffs’ complaint as a claim against Anne Marie Roy’s employer. A fair reading of the plaintiffs’ complaint, however, does not support such a construction. It is undisputed that Dymax paid Anne Marie Roy’s workers’ compensation and, as a consequence of being her employer, Dymax is insulated from tort liability for her injuries. The defendants against whom the plaintiffs have brought suit are individuals, the Bachmanns, and not Dymax. That the defendants have a stock interest in and serve as officers of Dymax does not, itself, provide any basis for concluding that they, and not Dymax, are Anne Marie Roy’s employer. The plaintiffs simply are asserting a premises liability claim against the defendants, the landowners. Having incorrectly made the determination that the defendants were Anne Marie Roy’s employer, the court rendered summary judgment in favor of the defendants on the basis of its mistaken belief that the plaintiffs had sought to invoke the dual capacity doctrine to avoid the exclusivity provision of the act. Because the plaintiffs’ complaint does not allege a claim against Anne Marie Roy’s employer, the exclusivity provision of the act regarding employers is not implicated in this tort claim against the defendants.

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

In this opinion HARPER, J., concurred.

WEST, J.,

dissenting. I respectfully dissent from the majority’s determination that the exclusivity rule of the Workers’ Compensation Act (act); General Statutes § 31-275 et. seq.; does not shield the defendants, Andrew G. Bachmann and Jane B. Bachmann, from liability for damages arising from injuries sustained by the plaintiff Anne Marie Roy, for which she was compensated under the act. The majority concludes that Roy and her husband, Steven Roy, who also is a plaintiff, maintained their action against the defendants as “landowners” and, as a result, for purposes of the act’s exclusivity rule, the defendants could not be considered Anne Marie Roy’s employer. Therefore, because the exclusivity rule is applicable only as a bar to actions against an employer, the majority concludes that the present action for damages against the defendants in their persona as landowners was not barred. I disagree.

I agree with the majority’s statement of the law, as well as the standard of review, applicable to a trial court’s decision to grant a motion for summary judgment. I do, however, underscore that “[i]t is well established . . . that where it is undisputed that [a] plaintiff was engaged in the course of . . . employment at the time of [an] accident, whether he is barred by the [act] from maintaining an action against a tortfeasor is a question of law for the court.” Velardi v. Ryder Truck Rental, Inc., 178 Conn. 371, 375, 423 A.2d 77 (1979). Furthermore, I agree with the majority’s characterization of the exclusivity rule and its statutory exception under our workers’ compensation scheme, as well as those expressly carved out by our Supreme Court. It seems to me, however, that the majority concludes that because the defendants possessed a landowner persona and the plaintiff was an employee of Dymax Corporation at the time of her injury, the defendants could under no circumstance be considered as Anne Marie Roy’s employer for the purposes of the application of the exclusivity rule, and, therefore, the rule does not shield them from this action. I see no reason to adhere to the analytical approach of the majority. For the reasons set forth, I conclude that because, under the applicable precedents, the defendants, for the purposes of our workers’ compensation law and in these circumstances, can be considered Anne Marie Roy’s employer, the exclusivity rule applies. Therefore, I would hold, on the basis of this record, that the court properly rendered summary judgment in favor of the defendants and would affirm the court’s judgment.

“The purpose of the [workers’] compensation statute is to compensate the worker for injuries arising out of and in the course of employment, without regard to fault, by imposing a form of strict liability on the employer. . . . The [act] compromise [s] an employee’s right to a common law tort action for work related injuries in return for relatively quick and certain compensation.” (Citations omitted; internal quotation marks omitted.) Dowling v. Slotnik, 244 Conn. 781, 799, 712 A.2d 396, cert. denied sub nom. Slotnik v. Considine, 525 U.S. 1017, 119 S. Ct. 542, 142 L. Ed. 2d 451 (1998). “The entire statutory scheme of the [act] is directed toward those who are in the employer-employee relationship as those terms are defined in the act and discussed in our cases. That relationship is threshold to the rights and benefits under the act . . . .” (Internal quotation marks omitted.) Id., 800. “Just as a claimant may invoke the act’s remedies only if the claimant satisfies the jurisdictional requirement of an employee as set forth in § 31-275 (9) . . . only those defendants who satisfy the requisite jurisdictional standard of an employer as set forth in § 31-275 (10) may successfully assert the exclusivity of the act as a bar to a common-law action by an alleged employee.” (Citations omitted.) Doe v. Yale University, 252 Conn. 641, 680, 748 A.2d 834 (2000). “In short, if the defendant was the plaintiffs employer, the plaintiff [is] relegated to the remedies afforded by the [act].” Velardi v. Ryder Truck Rental, Inc., supra, 178 Conn. 376.

Our Supreme Court has utilized the “right to control” test in order to determine whether a defendant in a workers’ compensation case was an employer as defined in § 31-275 (10). See Doe v. Yale University, supra, 252 Conn. 680-82 (whether individual or entity is employer under act is question of specific individual’s or entity’s degree of control over alleged employee). “The right to control test determines the [relationship between a worker and a putative employer] by asking whether the putative employer has the right to control the means and methods used by the worker in the performance of his or her job.” (Internal quotation marks omitted.) Hanson v. Transportation General, Inc., 245 Conn. 613, 620, 716 A.2d 857 (1998). “The test of the relationship is the right to control. It is not the fact of actual interference with the control, but the right to interfere . . . .” (Internal quotation marks omitted.) Doe v. Yale University, supra, 681.

The affidavits submitted by the Bachmanns assert the following unrefuted indicia of the defendants’ right to control Anne Marie Roy as her employer: both defendants were owners of Dymax Corporation, a closely held corporation; the defendants together owned over 68 percent of the outstanding stock; Andrew G. Bachmann was the chief executive officer, president and chairman of the board; he signed all paychecks. Jane B. Bachmann was a vice president, and the defendants themselves “maintained [workers’ [compensation [b]enefits for all employees of Dymax Corporation . . . .” See General Statutes § 31-275 (10) (employer may accept and become bound by provisions of this chapter by immediately complying with General Statutes § 31-284). The plaintiffs did not submit any materials raising an issue of material fact with respect to those assertions. The mere assertion of the legal conclusion that the defendants were not, for the purposes of our workers’ compensation scheme, Anne Marie Roy’s employer was not sufficient to defeat the defendants’ motion for summary judgment. See Velardi v. Ryder Truck Rental, Inc., supra, 178 Conn. 375. The defendants had the burden of showing the nonexistence of a material fact; Himmelstein v. Windsor, 116 Conn. App. 28, 42, 974 A.2d 820, cert. granted on other grounds, 293 Conn. 927, 980 A.2d 910 (2009); and the evidence presented, if otherwise sufficient in this regard, is not rebutted by the naked statement that an issue of fact does exist. See Velardi v. Ryder Truck Rental, Inc., supra, 375. As a result, I conclude that the court properly rendered summary judgment in favor of the defendants on the ground that the exclusivity rule of the act bars Anne Marie Roy’s claim of negligence.

I, therefore, respectfully, dissent.

       General Statutes § 31-284 (a) is the exclusivity provision of the act and provides that an employer, although required to compensate an employee as set forth in the act for death or personal injury sustained in the course of employment, is not liable in a civil action for damages arising from that injury.

       On April 5, 2007, the plaintiff Anne Marie Roy filed a complaint against the defendants, Andrew G. Bachmann and Jane B. Bachmann, that sounded in negligence. Subsequently, Steven Roy filed a motion to be joined as a party plaintiff, which was granted on June 29, 2007, and, by substituted complaint, he joined the action, alleging a loss of consortium as a result of the defendants’ alleged negligence. Therefore, we will refer to the Roys as the plaintiffs.

       During oral argument before this court, counsel for the defendants indicated that Andrew G. Bachmann had died during the pendency of the case. Subsequently, we, sua sponte, ordered counsel for the defendants to file a motion to substitute the personal representative of the estate of Andrew G. Bachmann with this court. The defendants filed a motion to substitute Jane B. Bachmann, executrix of the estate of Andrew G. Bachmann, as the personal representative of Andrew G. Bachmann in this matter. The plaintiffs consented to the substitution. Accordingly, we granted the motion for change in party but for clarity have preserved the original identity of the parties in the text of the opinion. See General Statutes §§ 45a-206, 52-599 and 52-600; Yaeger v. Dubno, 188 Conn. 206, 207 n.1, 449 A.2d 144 (1982); Equitable Trust Co. v. Plume, 92 Conn. 649, 654, 103 A. 940 (1918).

       The act defines an employer as “any person, corporation, limited liability company, firm, partnership, voluntary association, joint stock association, the state and any public corporation within the state using the services of one or more employees for pay, or the legal representative of any such employer . . . .” General Statutes § 31-275 (10).

       General Statutes § 31-293 (a) allows a person who has sustained a compensable injury to pursue an action at law against a third party, who is not the employer, for any damages for which the third party may be liable. It also provides in relevant part that “any employer . . . having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against such [third party] to recover any amount that he has paid or has become obligated to pay as compensation to the injured employee. . . .” Dymax intervened as a plaintiff in this action in order to assert its rights pursuant to § 31-293, to recoup from Anne Marie Roy, the amount of the workers’ compensation paid to her from any judgment she may secure against the defendants.

       Although our review of decisional law has found no Connecticut appellate opinion directly on point, decisions from other jurisdictions support the notion that, given the underlying facts we face, the dual capacity doctrine is not implicated because Anne Marie Roy’s employer and the defendants are not, by legal definition, one and the same. In a case with significant parallels to the one we face, the Michigan Supreme Court, in Bitar v. Wakim, 456 Mich. 428, 572 N.W.2d 191 (1998), declined to reach the dual capacity doctrine because the employer and the tort defendant were not the same person. There, the plaintiff worked for the Beirut Bakery, Inc., a Michigan corporation whose stock was wholly owned by the tort defendant, Iskandar Wakim. Id., 430. Wakim also personally owned the propertywhere the bakery was located and leased the property to the bakery. Id. In reversing the judgment of the Court of Appeals, which had affirmed the trial court’s dismissal of the action, the Michigan Supreme Court concluded: “Mr. Wakim and the Beirut Bakery were separate legal entities at the time of [the plaintiffs] fall. As the employer, the bakery should not be sued because of the exclusive remedy provision. However, the Court of Appeals erred when it allowed Mr. Wakim to use this provision to protect himself from suit as the premises owner.” Id., 435. In reaching this conclusion, the court commented as well that “[bjecause Mr. Wakim is not to be viewed as [the plaintiffs] employer, we do not need to reach Mr. Wakim’s defense under the dual capacity doctrine.” Id., 434.
      To similar effect, the Illinois Appellate Court has stated that it would be inappropriate to consider the dual capacity doctrine where the employer was a separate legal entity from the tort defendant. See Guerino v. Depot Place Partnership, 273 Ill. App. 3d 27, 652 N.E.2d 410, leave to appeal denied, 163 Ill. 2d 556, 657 N.E.2d 620 (1995). In Guerino, the plaintiff sustained an injury while in the employ of the Concrete Doctor, Inc., a corporation from which he received workers’ compensation benefits. Id., 29. He thereafter sued the individual partners and the partnership that leased the premises housing the Concrete Doctor, Inc. Two of the three partners also had substantial stock interest and involvement in the operations of the Concrete Doctor, Inc. Id. The reviewing court was confronted with the question of whether the partnership should enjoy immunity from suit based on the exclusivity provisions of the Hlinois workers’ compensation act.
      The court observed: “The dual capacity doctrine, as an exception to the exclusive-remedy provision of section 5 (a) of the [Workers’ Compensation] Act, only comes into play when the defendant’s identity has merged into that of employer, or agent or employee of the employer.” Id., 32. The court then cited with approval its statement in an earlier case that a defendant “cannot choose when to disregard his corporate form or business at his own convenience. The dual persona doctrine does not need to be applied when the corporate employer is a separate entity from the owners of the corporation who also own the land upon which the injury occurred.” (Internal quotation marks omitted.) Id.
      In rejecting the dual capacity doctrine, the Tennessee Supreme Court succinctly stated that “[t]he employer is the employer; not some person other than the employer. It is that simple.” McAlister v. Methodist Hospital of Memphis, 550 S.W.2d 240, 246 (Term. 1977).
      The thrust of these cases is that when the employer and the tort liability defendant are not the same legal entities, the dual capacity doctrine does not come into play. Accordingly, the fact that Connecticut has rejected the dual capacity doctrine should have no bearing on the correct determination of this appeal.

       The defendants have also admitted, in response to the intervening complaint filed by Dymax, that Anne Marie Roy was employed by Dymax at the time of her accident. This same acknowledgment was made by the defendants in their respective affidavits filed in support of their motion for summary judgment. That each of the defendants also alleged in their respective affidavits that “I maintained [workers’ [compensation [bjenefits for all employees of Dymax” can only fairly be read in the context of their managerial responsibilities. Certainly, it does not lead to an inevitable conclusion that either or both of the defendants, and not Dymax, provided workers’ compensation benefits for Dymax employees.

       We are aware of no decisional law that would provide a pathway for a court to expand the statutory definition of employer to include, within the definition of employer, individuals simply because they are officers with managerial functions or substantial ownership interest in the employing entity. Our Supreme Court has observed with approval that “[traditionally, the law has viewed each corporation as a separate legal entity, with separate rights and obligations. For legal purposes, a bright line of distinction was drawn between the corporation and its shareholders.” (Internal quotation marks omitted.) SFA Folio Collections, Inc. v. Bannon, 217 Conn. 220, 230 n.9, 585 A.2d 666, cert. denied, 501 U.S. 1223, 111 S. Ct. 2839, 115 L. Ed. 2d 1008 (1991); see also P. Blumberg, The Law of Corporate Groups (1983) § 1.01.1, p. 1.
      To the extent that the dissent relies on cases dealing with the “right to control” concept for its conclusions that the Bachmanns were Roy’s employer, the dissent’s reliance is misplaced for two reasons. First, even though the Supreme Court, in Doe v. Yale University, 252 Conn. 641, 748 A.2d 834 (2000), cited by the dissent, looked to right-to-control cases in its discussion of whether Yale University could be viewed as the employer of a person who worked for Yale-New Haven Hospital, the “right to control” test is more fundamentally utilized to determine the nature of the relationship between an employee and a putative employer and not the identity of the latter. This is borne out by examination of every case cited in Doe in support of its invocation of the “right to control” test. See Hanson v. Transportation General, Inc., 245 Conn. 613, 716 A.2d 857 (1998) (whether taxicab driver was employee or independent contractor); Hunte v. Blumenthal, 238 Conn. 146, 680 A.2d 1231 (1996) (whether foster parents could be considered employees of state where state exercised some degree of control over manner in which foster parents fulfilled their responsibilities); Silverberg v. Great Southwest Fire Ins. Co., 214 Conn. 632, 573 A.2d 724 (1990) (whether assistant corporation counsel could be considered municipal employee);
        Ross v. Post Publishing Co., 129 Conn. 564, 567, 29 A.2d 768 (1943) (whether newsboys were independent contractors or employees of newspaper).
      It is significant that in none of these cases was the identity of the putative employer an issue; rather, in all of them, the question related to the relationship between the known parties. A second reason the dissent’s reliance on Doe is misplaced is that Doe and the cases it cites affirm the proposition that whether a putative employer exercises sufficient control over an individual such that he or she may be viewed as an employee requires a fact bound inquiry. Thus, even if the “right to control” line of cases has any bearing on the issue we confront, the assessment of whether a putative employer exercises sufficient control is a question of fact not appropriate for summary judgment. See Doe v. Yale University, supra, 252 Conn. 641; Hanson v. Transportation General, Inc., supra, 245 Conn. 613; Chute v. Mobil Shipping & Transportation Co., 32 Conn. App. 16, 627 A.2d 956, cert. denied, 227 Conn. 919, 632 A.2d 688 (1993).
      Additionally, if the dual capacity doctrine can be seen as an unwarranted exception to the exclusivity provisions of a state’s workers’ compensation scheme, the broad and loose definition of employer as suggested by the trial court’s conflation of the defendants with Dymax in this instance can fairly be seen as the inappropriate erosion of a plaintiffs common-law right to bring a third party tort claim. In other words, the practical effect of the trial court decision is not to curb an unwarranted exception to the exclusivity provision of our act but, rather, to limit a tort plaintiff’s common-law right to seek redress against one who has breached a duty of care, in this case, a claim based on premises liability. Such a result is contrary to our bedrock jurisprudence that statutes in derogation of the common law should be strictly construed. See Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 581, 657 A.2d 212 (1995). We agree with the sentiment of the statement in a New Jersey Supreme Court case that “ [t]ort actions by employees against negligent third parties should be preserved to the maximum extent allowable by the workers’ compensation law because [t]he fixed dollar ceilings on benefits under the workers’ compensation laws are the result of a trade-off of certain liability of the employer for reduced awards for the employee.” (Internal quotation marks omitted.) Berko v. Freda, 93 N.J. 81, 95, 459 A.2d 663 (1983) (Handler, J., dissenting). Although it could be argued that Berko reflects a claimant oriented approach, one need not be a partisan to hold the view that the act should be enforced as enacted and that its exclusivity provision should not be expanded by implication to the detriment of a person’s common-law rights.

       Whether an entity may be considered the alter ego of another is not a question of policy to be decided as a matter of law. Indeed, because an alter ego claim is fact bound, it can only be resolved through a fact-finding process. In this instance, it is unclear whether the defendants seek to be considered the alter ego of Dymax. As special defenses, the defendants claimed the protection of the exclusivity provision of the act and § 31-293 (a). Although the trial court treated this as a claim that the plaintiff attempted to invoke the dual capacity doctrine in order to evade the act’s exclusivity provision, the generality of the defendants’ special defenses could also, perhaps, be viewed as a claim of alter ego.
      The essence of such a claim would be that the defendants are the alter ego of the employer for purposes of invoking the exclusive remedy provisions of the act. Such a claim, in this instance, would require a reverse piercing of the corporate veil to find that the defendants are, in essence, Dymax. Regardless of whether or not the underlying facts appear apt for alter ego consideration, the question of whether the defendants can successfully claim to be the alter ego of Dymax is not appropriate for summary disposition. See, e.g., Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 290, 698 A.2d 838 (1997) (Berdon, J., concurring in part and dissenting in part) (“it is a question of fact whether the managerial employee is. sufficiently high in the chain of command to be considered the alter ego of the corporate employer without respect to the employee’s formal title”); Morocco v. Rex Lumber Co., 72 Conn. App. 516, 527, 805 A.2d 168 (2002) (whether one can be considered alter ego for another is question of fact). Therefore, in the case at hand, even if the defendants’ claim could fairly be read as an assertion that, as landlords, they are only the alter ego of Dymax, their claim is not amenable to summary disposition because its resolution requires a factual inquiry.

       General Statutes § 31-284 (a) is the exclusivity provision of the act and provides that an employer, although required to compensate an employee as set forth in the act for death or personal injury sustained in the course of employment, is not liable in a civil action for damages arising from that injury.

       Since Doe v. Yale University, supra, 252 Conn. 641, was decided, our Superior Courts have applied the “right to control” test in the context of workers’ compensation cases and have cited Doe as supportive of the proposition that the determination of whether a defendant is an employer under the act is a question of the defendant’s degree of control over the alleged employee. See, e.g., Smith v. J.P. Alexandre, LLC, Superior Court, judicial district of Hartford, Docket No. CV-04-4005356-S (July 26, 2009) (whether defendant is employer under act is question of defendant’s degree of control over alleged employee); Sullivan v. Conniff, Superior Court, judicial district of New Haven, Docket No. CV-02-0463372-S (August 17, 2004) (same) (37 Conn. L. Rptr. 704); Milton v. Fulmer, Superior Court, judicial district of New Haven, Docket No. CV-02-0467452-S (July 11, 2003) (same); Owens v. A. Anastasio & Sons Trucking Co., Superior Court, judicial district of New Haven, Docket No. CV-99-0421367S (June 30, 2000) (same).


author: BEACH, J.

text:
    ANGELO ALTOMARI ET AL. v. FRED ALTOMARI ET AL.
    (AC 30007)
    Lavine, Beach and Robinson, Js.
    Argued January 5
    officially released May 18, 2010

      Abram J. Heisler, for the appellant (named defendant).

      Joseph F. Mulvey, for the appellees (plaintiffs).
   Opinion

BEACH, J.

The defendant Fred Altomari appeals from the judgment rendered in favor of the plaintiff Angelo Altomari in this summary process action seeking possession of the subject premises. The defendant claims that the trial court improperly found that the plaintiff had established that the defendant’s right or privilege of occupancy had terminated. We conclude that the court did not err in finding that the defendant once had the right or privilege to occupy the premises but that that right or privilege had terminated. Accordingly, we affirm the judgment of the trial court.

The following facts and procedural history are relevant to the defendant’s appeal. The plaintiff and the defendant are brothers. On September 23, 1988, the plaintiff entered into a written agreement (conveyancing agreement) with his parents, Frank Altomari and Domenica Altomari. The parents agreed to convey the subject premises to him, and the parents retained the right to live in the subject premises for the remainder of their lives. The plaintiff agreed in the conveyancing agreement to “provide living accommodations for [the defendant], either on the premises or at some other premises in which [the plaintiff] resides.”

On the same day that the plaintiff entered into the conveyancing agreement with his parents, he also entered into a partnership agreement with his siblings, Anthony Altomari, Maria Pisano and Lina Cantavero. The purpose of this partnership agreement was to use partnership funds “to provide for the care and welfare of the parents if needed by them.” The partnership agreement also stated that “[i]n the event that a need arises for the welfare of [the defendant], then a majority vote of the [p]artners shall be needed to use [p]artnership funds for the benefit of [the defendant].” The partnership agreement further provided that “[i]n the event that the [p]artnership is dissolved then the [p]artners agree to make other living [a]ccommodations for [the defendant].” At trial, the plaintiff testified that the partnership had been dissolved in 2005 and that his parents were deceased.

Following the dissolution of the partnership, the plaintiff issued a notice to quit to the defendant and Jane Doe. When the defendant did not leave the subject premises, the plaintiff brought a summary process action. The plaintiff sought to evict the defendant on three grounds: (1) lapse of time, (2) the defendant’s right or privilege to use and occupy the premises had ended, and (3) the plaintiff wanted to remove the premises from the housing market.

The defendant filed an answer and special defense to the plaintiffs complaint. In his answer, the defendant denied that the parties had an oral agreement and alleged as a defense that he maintained a life estate in the premises. At trial, the defendant claimed that his life estate was created by the conveyancing agreement between the plaintiff and his parents. The plaintiff claimed that the conveyancing agreement did not provide the defendant with a life estate, but, at most, required that the plaintiff provide the defendant with housing. In addition, the plaintiff argued that the partnership agreement superseded the conveyancing agreement between the plaintiff and his parents, and that under the partnership agreement, he was no longer obligated to provide the defendant with housing.

In its memorandum of decision, the court found that the partnership agreement did not modify or negate the terms of the conveyancing agreement between the plaintiff and his parents because his parents were not parties to the partnership agreement. Nonetheless, the court found that the conveyancing agreement between the plaintiff and his parents did not convey to the defendant a life estate in the premises because the agreement did not create an interest in real property. Rather, the conveyancing agreement merely created, at most, a contractual duty for the plaintiff to provide the defendant with living accommodations. Noting that the defendant relied exclusively on his special defense that alleged that he had a life estate in the subject property, which the court concluded was incorrect, and suggesting that nothing else was contested, the court found in favor of the plaintiff as to the first and second counts of the complaint. The court rendered judgment in favor of the plaintiff for immediate possession of the property, with a statutory stay of execution. This appeal followed.

The defendant claims that the court incorrectly held that his right or privilege of occupancy had terminated. We disagree.

The defendant argues that his right to occupy the subject premises was created by the conveyancing agreement between his parents and the plaintiff. He contends that because the plaintiff was required to provide housing for him at either the subject premises or at the plaintiffs residence and because the plaintiff stated that he had no intention of allowing the defendant to reside in his home, by default, he has a right to occupy the premises.

“[W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Internal quotation marks omitted.) Gentile v. Car-neiro, 107 Conn. App. 630, 640, 946 A.2d 871 (2008). Our review of the record indicates that the court’s determinations that the defendant no longer had a right to reside in the subject premises and never had a legally cognizable life estate are sufficiently supported by the evidence and are not clearly erroneous.

“Summary process is aimed at deciding the simple question of who is entitled to possession.” Yarbrough v. Demirjian, 17 Conn. App. 1, 3, 549 A.2d 283, cert. denied, 209 Conn. 828, 552 A.2d 434 (1988). The defendant conceded at oral argument before this court that he does not hold a life estate in the subject premises. He relies solely on a provision in the conveyancing agreement between the plaintiff and his parents to support his right to remain on the property. Regardless of what other rights or duties may have been created by the conveyancing agreement, it did not entitle the defendant to possess the property as a tenant for life. The plaintiff permitted the defendant to live on the premises for a period of time but then informed the defendant that he no longer had the privilege to reside in the premises. General Statutes § 47a-23 (a) provides in relevant part that “[w]hen the owner . . . desires to obtain possession or occupancy of any land or building . . . and ... (3) when one originally had the right or privilege to occupy such premises but such right or privilege has terminated . . . such owner or lessor . . . shall give notice to each . . . occupant to quit possession or occupancy . . . .” The plaintiff gave notice to the defendant that he must quit possession or occupancy of the property in accordance with the statute. Accordingly, the court did not err in rendering judgment in favor of the plaintiff.

The judgment is affirmed.

In this opinion the other judges concurred.

       The summary process complaint also named “Jane Doe” as a defendant. She is not a party to the appeal. We also note that subsequent to the summary process trial, Frank Cantavero was appointed as conservator for his brother-in-law, Fred Altomari, and that this court granted the defendant’s motion to substitute Frank Cantavero, conservator for Fred Altomari, for Fred Altomari. We will refer in this opinion, however, to Fred Altomari as the defendant.

       Phyllis Altomari, Angelo Altomari’s wife, also is a plaintiff and allegedly a lessor of the subject premises. The trial court noted that she was a plaintiff and made no further comment about her other than to state that because she did not play a role in the factual circumstances of this case, “for the purpose of clarity,” it would not refer to her in the opinion. We therefore refer to Angelo Altomari as the plaintiff for the purposes of this opinion.

       The defendant also claims that the court improperly found that the plaintiff was entitled to possession of the premises pursuant to a claim of lapse of time. Because we agree that the court properly concluded that the plaintiff was entitled to possession based on the claim that the defendant’s right or privilege of occupancy had terminated, we need not decide the claim based on lapse of time.

       See footnote 1 of this opinion.

       In the plaintiffs posttrial brief, he appeared to have abandoned the claim that he wanted to remove the premises from the housing market.

       The defendant does not appear to have been a party to either the conveyancing agreement or the partnership agreement.

       We, of course, express no opinion as to the effect of the statement in the conveyancing agreement that the plaintiff “agrees to provide living accommodations for [the defendant], either on the premises or at some other premises in which [the plaintiff] resides” other than that it does not necessarily create a life estate in the specific premises in favor of the defendant.