author: HARPER, J.

text:
    MATTHEW M. MARTOWSKA v. KATHRYN R. WHITE
    (AC 35208)
    Robinson, Sheldon and Harper, Js.

      Argued October 10, 2013
    officially released April 8, 2014

      Matthew M. Martowska, self-represented, the appellant (plaintiff).

      Kerry A. Tarpey, for the appellee (defendant).

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

   Opinion

HARPER, J.

The plaintiff, Matthew M. Martowska, has been engaged in ongoing postjudgment litigation with the defendant, Kathryn R. White, with respect to visitation with and custody of their minor child. In this appeal, the plaintiff claims that the trial court erred by denying his motion to enforce the visitation orders set forth in its memorandum of decision dated October 9, 2007, and in ordering the release of a psychological evaluation of the plaintiff to which he submitted pursuant to subsequent temporary visitation orders that he claims have expired and become moot. We disagree and, thus, affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. On October 19, 2005, the plaintiff filed a custody application requesting, inter alia, joint custody of his and the defendant’s minor child, and an order establishing a visitation schedule with the child. Attorney Barry F. Armata was appointed as the guardian ad litem for the minor child. During the next two years, the parties reached several agreements—subsequently entered as court orders—regarding custody and visitation. In 2007, the parties sought final custody and visitation orders from the court.

On October 9, 2007, after a bench trial, the court issued a memorandum of decision that included visitation and custody orders (October, 2007 decision). The court therein ordered that the parties share joint legal custody, but that the child reside primarily with the defendant. In addition, the court ordered that visitation take place in accordance with a detailed visitation schedule contained therein. The court also ordered: “ [N] o motion for modification will be entertained unless the filing party has procured the granting of a request for leave to modify under Practice Book [§] 25-26 . . . .’

For more than two years following the October, 2007 decision, neither party filed any motions in this case. In February, 2010, however, the plaintiff was involved in a domestic incident with a third party that resulted in his arrest and the issuance of a protective order that prevented him from seeing the parties’ child. The protective order later was modified on June 28, 2011, to allow him visitation in accordance with the October, 2007 decision. The plaintiff subsequently filed a motion for contempt, alleging that the defendant had refused to give him access to the child. The parties then entered into a series of stipulated agreements, all of which were later entered as court orders.

On August 30, 2011, the parties entered into a further agreement whereby the plaintiff would have supervised visitation. The court accepted this agreement and made it an order of the court. The plaintiff engaged in supervised visitation pursuant to this agreement. While such supervised visits still were taking place, the plaintiff filed another motion for contempt on January 13, 2012, in which he argued that the defendant was not following the visitation orders in the October, 2007 decision. In that motion, the plaintiff requested that the visitation orders in the October, 2007 decision be enforced. The court disposed of this motion by entering a February 7, 2012 agreement of the parties as a court order, in which the parties agreed to undergo psychological evaluations “for custodial/parenting plan purposes.”

After almost one year of supervised visitation pursuant to the latter agreement, Armata determined that supervised visits were no longer necessary and submitted proposed orders to the court, which were later adopted as “temporary” court orders on August 13,2012 (temporary orders). The temporary orders established a new visitation schedule under which the plaintiffs future visitation would increase every four weeks until, ultimately, the child was permitted to stay with the plaintiff overnight. The final step of the new schedule provided that “[following those [four weeks of] overnight [visits], and after completion of the psychological evaluation . . . previously ordered by this court, the parties will then get into an alternating weekends schedule, plus additional time as arranged.” The temporary orders also provided that there would be “an evidentiary hearing in September, 2012, after the results of [the psychological] evaluationfs] have been received to determine if any changes to the parenting plan need to be made.” Both parties underwent psychological evaluations, but the plaintiff refused to release the results of his evaluation, citing privacy concerns. As a result, the psychological evaluations never were released to the parties.

On October 25, 2012, the plaintiff filed a motion to enforce the October, 2007 decision, reasoning that the temporary orders had “expired” because the four weeks of overnight visits had been completed without incident, and thus the psychological examinations therein referenced had become moot. By this motion, the plaintiff made a second request that the parties return to the visitation and custody plan outlined in the October, 2007 decision. At the November 7, 2012 hearing on the motion to enforce, the plaintiff also asserted that any modifications to the original October, 2007 decision were invalid because neither party sought leave of the court, and, as a result, the visitation schedule in the October, 2007 decision should be enforced. The court denied the plaintiffs motion to enforce, noting that the October, 2007 decision “is still valid . . . but we’re not going back to the parenting and custody plan that is in place there.” Thereafter, following a hearing on January 16, 2013, the court granted the defendant’s motion to release the plaintiffs psychological evaluation over the plaintiffs objection and ordered the plaintiff to release his evaluation. That order was stayed pending this appeal. On appeal, the plaintiff claims that (1) the court improperly denied his motion to enforce the visitation schedule in the October, 2007 decision because there were never any valid modifications made to that schedule, and (2) his psychological evaluation is either moot or irrelevant, and therefore the court erred by ordering that it be released.

I

The plaintiff claims that the court erred in denying his motion to enforce the October, 2007 decision because there were no valid modifications to the visitation schedule contained in the October, 2007 decision. The plaintiff asserts that because neither party sought leave of the court to file a motion to modify pursuant to Practice Book § 25-26 (g), as required by the October, 2007 decision, all modifications to the original visitation schedule are invalid. Therefore, the plaintiff argues, absent any valid modifications, the visitation schedule detailed in the October, 2007 decision should be enforced. The plaintiff, however, never filed timely appeals from the modification orders that he now challenges, and therefore his claim fails.

The plaintiffs argument that the court erred in denying his motion to enforce the visitation schedule contained in the October, 2007 decision rests on the validity of the modifications that the court ordered subsequent to that decision. After the protective order was lifted, the court ordered two modifications to the visitation schedule contained in the October, 2007 decision. First, on August 30, 2011, the court ordered supervised visitation. Second, on August 13, 2012, the court entered the temporary orders. Both of these orders were final judgments, from which the plaintiff had twenty days to appeal. Brennan v. Brennan, 85 Conn. App. 172, 177-78, 857 A.2d 927 (order temporarily modifying custody final judgment), cert. denied, 271 Conn. 944, 861 A.2d 1177 (2004); but see Strobel v. Strobel, 73 Conn. App. 428, 434-37, 808 A.3d 698 (“temporary” order without hearing akin to emergency order and not final judgment), cert. denied, 262 Conn. 928, 814 A.2d 383 (2002); Practice Book § 63-1 (appeal must be filed within twenty days of date notice of decision given). The plaintiff did not appeal from either of these orders. It was two months later, on October 25, 2012, when the plaintiff first claimed that these modifications were invalid on the ground that neither party had sought leave of the court. By then, the time to appeal these previous modifications had expired. See Practice Book § 63-1. As a result, the plaintiff cannot now mount a collateral challenge to these modifications through his motion to enforce. We conclude that the court did not err in denying the plaintiffs motion to enforce the visitation orders in the October, 2007 decision, and that the temporary orders, which require the plaintiff to submit to a psychological evaluation for the court’s review, currently govern visitation.

II

The plaintiff next claims that his psychological evaluation is either moot or irrelevant, and, therefore, it was improper for the court to order the evaluation released. In support of his claim, the plaintiff relies on a line of cases applying General Statutes § 46b-6, the statutory basis for the court’s authority to order psychological evaluations in pending family matters. We are not persuaded.

The plaintiff argues that the issue is controlled by Janik v. Janik, 61 Conn. App. 175, 180, 763 A.2d 65 (2000), cert. denied, 255 Conn. 940, 768 A.2d 949 (2001), and Savage v. Savage, 25 Conn. App. 693, 698-99, 701, 596 A.2d 23 (1991), in which we concluded that the trial courts had abused their discretion when they ordered the parties to submit to postjudgment psychological evaluations. In both cases, the psychological evaluations were ordered after the courts had determined a final visitation schedule. Janik v. Janik, supra, 180; Savage v. Savage, supra, 700-701. Those courts, therefore, abused their discretion by ordering those evaluations when there were no longer any motions or matters pending. Janik v. Janik, supra, 180; Savage v. Savage, supra, 701. The court ordered the psychological evaluation in the present action, however, for purposes of determining the final visitation schedule, unlike in Janik and Savage. See Savage v. Savage, supra, 700 (statutes authorize psychological evaluation in pending family matter because helpful to disposition of case). In any event, because the claim raised here is not whether the psychological evaluation was properly ordered, but whether the court properly ordered its release, Janik and Savage are inapposite.

The plaintiff also relies on Ruggiero v. Ruggiero, 76 Conn. App. 338, 819 A.2d 864 (2003), but again his reliance is misplaced. The plaintiff in Ruggiero argued that, pursuant to Savage and Janik, the court improperly ordered a psychological evaluation when there was no family matter pending. Id., 343. In Ruggiero, however, we never reached the merits of the plaintiffs argument. Id., 345 (“[i]n the present case, we do not need to address the issue of whether the matter was still a pending family matter when the court ordered the plaintiff to undergo a psychiatric evaluation”). Instead, we concluded that the claim had become moot because the parties had agreed to a visitation schedule that had been entered as an order of the court, and therefore no actual controversy continued to exist. Id., 346-47 (“[i]t is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow” [internal quotation marks omitted]).

The facts of this case do not implicate mootness, as in Ruggiero. An actual controversy continues to exist in the present case, namely, establishing a final visitation schedule that is in the best interest of the child. The fact that the court was able to issue the temporary orders without considering the plaintiffs psychological evaluation does not render that evaluation moot as the plaintiff argues. Mootness does not depend on the relevance or necessity of the evaluation; it depends on whether an actual controversy exists between the parties. Id., 347. Here, a controversy continues to exist, and therefore the plaintiffs arguments based on Rugge-rio fail. We are not persuaded that the plaintiffs psychological evaluation was either moot or irrelevant, and therefore conclude that the court did not abuse its discretion by ordering the evaluation released.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 25-26 (g) provides in relevant part: “[U]pon or after entry of a judgment or final order of custody and/or visitation . . . the judicial authority may order that any further motion for modification of a final custody or visitation order shall be appended with a request for leave to file such motion . . .

       The criminal charges filed against the plaintiff in relation to this incident were dismissed.

       The plaintiff indicates that, although he felt that the October, 2007 decision still governed visitation, he entered into the August 30,2011 agreement “in an effort to provide the [defendant] an opportunity to regain comfort and reassurance” after the domestic incident.

       Reports from the supervised visitation program indicated that the staff had no concerns regarding the plaintiff: “This worker has always found [the plaintiff] to be polite, pleasant, and much focused on his visits. It should be noted that [the plaintiff] continues to come in very prepared for his visits with healthy meals, appropriate games, and demonstrates a very loving parent-child relationship.”

       In a subsequent July 10, 2012 agreement, the parties substituted another doctor for the one named in the original February 7, 2012 agreement. This subsequent agreement did not purport to affect the purpose of the evaluations, which was to establish a visitation plan in response to the plaintiffs motion for contempt.

       Although not directly released to the parties, the evaluations have been filed with the court. Due to the plaintiffs objections and this pending appeal, however, the court and the parties have refrained from reviewing them.

       Prior to this tíme, the plaintiff was represented by counsel. The plaintiff filed this motion as a self-represented party and continues to be self-represented during this appeal.

       The plaintiff avers that the court erroneously denied his motion to enforce based on a substantial change in circumstances. The plaintiffs motion was substantively a motion to modify visitation, and the court considered it as such. The plaintiffs motion asked the court to modify the existing visitation scheduled under the temporary orders by enforcing the visitation schedule contained in the October, 2007 decision. The court recognized that the October, 2007 decision was not the visitation schedule in place, and that “the standard [to modify visitation] is that there be a substantial change in circumstances.” This is the appropriate standard for modifying visitation, and therefore the plaintiffs argument is without merit. See In re Anthony E., 96 Conn. App. 414, 418, 900 A.2d 594, cert. denied, 280 Conn. 914, 908 A.2d 535 (2006).

       The plaintiff initially appealed the court’s denial of his motion to enforce. He then amended his appeal to include the trial court’s order releasing his psychological evaluation.

       The plaintiff also claims that, because his psychological evaluation is either moot or irrelevant, the court improperly denied his motion to enforce. This claim is based on the plaintiffs view that the temporary orders were a “transition back to the original parenting plan” contained in the October, 2007 decision. The plaintiffs logic appears to be that the visitation schedule in the October, 2007 decision would have been enforced after two events occurred pursuant to the temporary orders: (1) he completed the series of four week visitation schedules, and (2) the court considered his psychological evaluation. The plaintiff reasons that, because his psychological evaluation is either moot or irrelevant, there is only one remaining condition precedent to “transitioning” back to the visitation schedule in the October, 2007 decision—completing the series of four week visitation schedules. Moreover, the plaintiff argues that because he has completed the series of visitation schedules the court should “transition back to the original parenting plan” and enforce the visitation schedule in the October, 2007 decision. The plaintiffs reasoning is flawed.
      An original custody order remains undisturbed until a subsequent modification is granted, and the court alters custody. Savage v. Savage, 25 Conn. App. 693, 701, 596 A.2d 23 (1991). Once the court orders a modification, the previous order no longer governs custody and the new order remains in effect until the court orders a subsequent modification. See id. In the present case, the visitation schedule in the October, 2007 decision was modified several times, and therefore the original schedule in the October, 2007 decision no longer governed visitation. The last modification that the court ordered was the temporary orders, meaning the temporary orders remain in effect until subsequently modified. Contrary to the plaintiffs claim, the parties cannot simply “transition” from the temporary orders to the original visitation schedule contained in the October, 2007 decision. Any future visitation schedule that differs from the one contained in the temporary orders requires the court to order a modification—the parties cannot automatically “transition” to a different visitation schedule, or return to the original schedule, merely because the plaintiffs court-ordered psychological evaluation is purportedly moot or irrelevant. For these reasons, the plaintiffs claim that the relevancy or mootness of his psychological evaluation is dispositive with respect to the court’s ruling on his motion to enforce is unavailing.

       The plaintiff also asserts that the court “fail[ed] to make a finding on a material change in circumstances before modifying the original order . . . .” This claim also is untimely for the reasons stated previously.

       Alternatively, even if the plaintiff had filed a timely appeal, he is not entitled to relief because he is unable to show harm from the defendant’s failure to request leave to seek modification of the existing visitation orders. Relief is only granted “if one or more of [the court’s] rulings were harmful . . . [meaning] the ruling would likely affect the result.” (Citations omitted; internal quotation marks omitted.) Borkowski v. Borkowski, 228 Conn. 729, 747, 638 A.2d 1060 (1994). Practice Book § 26-26 (g) requires the moving party to request leave to file a motion to modify and “demonstrate probable cause that grounds exist for the motion to be granted.” After this showing, the court considers the motion to modify on its merits, which requires proof of a material change in circumstances by a preponderance of the evidence. In re Anthony E., 96 Conn. App. 414, 418, 900 A.2d 594, cert. denied, 280 Conn. 914, 908 A.2d 535 (2006). By virtue of the fact that the court was satisfied that the parties met the higher burden of proof and ordered the modification, it follows logically that there was probable cause to file the motion to modify. See State v. Mitchell, 200 Conn. 323, 339, 512 A.2d 140 (1986) (Shea, J., concurring). The court’s failure to first require that the parties request leave to file the motion pursuant to the October, 2007 decision was not harmful because it had no effect on the ultimate result. See Borkowski v. Borkowski, supra, 747. Without harm, there can be no relief. See id.

       The court’s order releasing the psychological evaluation for the purpose of determining a visitation schedule is a final judgment. See Dutkiewicz v. Dutkiewicz, 289 Conn. 362, 369 n.8, 597 A.2d 821 (2008); Madigan v. Madigan, 224 Conn. 749, 754-55, 57, 620 A.2d 1276 (1993). An improper release of the evaluation and its subsequent use in fashioning a visitation schedule “may interfere with [the plaintiff’s] custodial rights over a significant period in a manner that cannot be redressed at a later time. A lost opportunity to spend significant time with one’s child is not recoverable. . . . [A]n immediate appeal of the court order in this case is the only reasonable method of ensuring that the important rights surrounding the parent-child relationship are adequately protected.” (Citation omitted; internal quotation marks omitted.) Taff v. Bettcher, 243 Conn. 380, 386-87, 703 A.2d 759 (1997).

       We note that the plaintiff alleges that the defendant “refus[ed] to grant visitation in order to leverage the release of psychological evaluations.” After today, the evaluation can be released. According to the temporary orders, all that remains before final visitation orders can be entered is an evidentiary hearing regarding the visitation schedule. We would be remiss, however, if we failed to mention that it is entirely possible that, prior to an evidentiary hearing, the parties could reach a mutual agreement regarding visitation, as they have done on multiple previous occasions.


source: Caselaw Access Project

author: LAVINE, J.

license: Public Domain

text:
    JOHN HERASIMOVICH v. TOWN OF WALLINGFORD ET AL.
    (AC 34643)
    (AC 34644)
    Lavine, Beach and Sheldon, Js.

      Argued January 7
    officially released April 8, 2014

      Janis M. Small, corporation counsel, for the appellant in AC 34643 (named defendant et al.).

      David H. Wrinn, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellant in AC 34644 (defendant Commissioner of Energy and Environmental Protection).

      John L. Cordani, Jr., with whom, on the brief, was Vincent T. McManus, for the appellee (plaintiff).
   Opinion

LAVINE, J.

The defendants, the town of Wallingford, the Wallingford Planning and Zoning Commission acting as Aquifer Protection Agency (agency), and Daniel Esty, the Commissioner of Energy and Environmental Protection (commissioner), appeal from the judgment of the Superior Court sustaining the appeal of the plaintiff, John Herasimovich, from the decision of the agency amending its aquifer protection regulations. The defendants claim that the court erroneously sustained the plaintiffs appeal when it (1) applied an adjudicatory standard of review to the agency’s legislative action of amending its regulations, and (2) determined that the agency’s notice of a public hearing was deficient. We agree with the defendants and, accordingly, reverse the judgment of the court.

The relevant procedural and factual history is as follows. The plaintiff is the owner of a business that services lawn mowers and other small engine equipment. His business is located in Wallingford in an area subject to regulation under the Aquifer Protection Act (act), General Statutes § 22a-354g et seq. The purpose of the act is to prevent the contamination of drinking water. See General Statutes § 22a-354g. Under the act, the Department of Energy and Environmental Protection (department) has general oversight, but much of the regulation and administration is delegated to local entities, in this case, the agency. See General Statutes § 22a-354o.

In August, 2005, the agency notified the plaintiff that he was required to register his business as a “regulated activity” pursuant to the Wallingford Aquifer Protection Areas Regulations (regulations). The regulations defined a “regulated activity” in relevant part as the “repair or maintenance of vehicles or internal combustion engines of vehicles, involving the use, storage or disposal of hazardous materials, including solvents, lubricants, paints, brake fluids, transmission fluids or the generation of hazardous wastes.” Wallingford Aquifer Protection Areas Regs., § 2. The regulation defined “vehicle” as “any vehicle propelled or drawn by any non-muscular power including without limitation an automobile, aircraft, all-terrain vehicle, snowmobile or vessel.” Id. The agency contended that servicing lawn mowers was a “regulated activity” because lawn mowers are powered by internal combustion engines.

The plaintiff refused to register, contending that lawn mowers were not covered under the regulation. In response, in October, 2007, the agency amended the regulations to include lawn mowers within the definition of “regulated activity.” The plaintiff appealed the agency’s action to the Superior Court and the court, A. Robinson, J., sustained the appeal. The court found the regulation to be valid, but determined that the public notice of the proposed amendment was deficient.

The agency issued a second public notice and the proposed amendment was again adopted by the agency on November 20, 2009. The plaintiff again appealed, and the court, Hon. Robert I. Berdon, judge trial referee, sustained the plaintiffs appeal, finding that the agency’s action was not supported by substantial evidence, and that the public notice published by the agency was deficient. The defendants, on the granting of certification, thereafter filed these appeals.

On appeal, the defendants claim that the court improperly (1) reviewed the agency’s action under the substantial evidence standard, and (2) found the public notice to be deficient. We agree with the defendants and, accordingly, reverse the judgment of the court.

I

We first address the defendants’ claim that the court failed to employ an appropriately deferential standard of review when it applied the “substantial evidence” test to the plaintiffs administrative appeal.

When a party claims that the trial court employed an improper standard of review, our review on appeal is de novo because such a claim necessarily involves a question of law. See Wallingford v. Dept. of Public Health, 262 Conn. 758, 771, 817 A.2d 644 (2003).

It is a well settled precept of administrative law that agency actions are subject to different standards of review depending on the nature of the agency action. When an agency is acting in its adjudicative capacity, and engaged in fact-finding, the agency’s action will be upheld only when the agency can demonstrate that the action is supported by substantial evidence. See Tarullo v. Inland Wetlands & Watercourses Commission, 263 Conn. 572, 583-87, 821 A.2d 734 (2003) (applying substantial evidence standard to review decision granting wetlands permit). Where the agency is functioning in its legislative, or a rule-making capacity, however, the standard of review is substantially more deferential, and a regulation “must be upheld by the [reviewing] court if [it is] reasonably supported by the record”; (emphasis omitted; internal quotation marks omitted) Lee & Lamont Realty v. Planning & Zoning Commission, 112 Conn. App. 484, 490, 963 A.2d 98 (2009); and the aggrieved party fails to demonstrate that the agency’s action was arbitrary, illegal, or an abuse of discretion. See Kaufman v. Zoning Commission, 232 Conn. 122, 152-53, 653 A.2d 798 (1995).

In the present case, the court improperly applied the substantial evidence standard of review to the agency’s legislative act. The agency was functioning in its legislative capacity and not in an adjudicative fashion when it amended its regulations to clarify the definition of “regulated activity.” In amending the text of the regulation, the agency was not engaged in making a factual determination as to whether the plaintiffs business itself was a “regulated activity,” but, rather, was engaged in adopting a regulation of general applicability. Notwithstanding the fact that the plaintiffs counsel, introduced numerous issues when he commented at the public hearing, including whether the plaintiffs property was located in the regulated area, the purpose of the hearing was to consider a narrow amendment to the regulations. The introduction of new issues through the statements and arguments of counsel does not change the fact that the agency was engaged in a legislative act that is entitled to judicial deference.

We therefore conclude that the court applied the wrong standard of review in adjudicating the plaintiffs appeal. Because an appeal from an administrative agency is based solely on the record, we will review the agency’s action under the appropriate standard of review. See Rapoport v. Zoning Board of Appeals, 301 Conn. 22, 34, 19 A.3d 622 (2011). When reviewing a challenge to an agency’s legislative action, the action is entitled to deference and will be upheld so long as the regulation finds reasonable support in the record and is authorized by statute. See Kaufman v. Zoning Commission, supra, 232 Conn. 152-53; Lee & Lamont Realty v. Planning & Zoning Commission, supra, 112 Conn. App. 490-91.

On the basis of our own review of the record, we conclude that the amendment to the regulations was reasonably supported by the record and that the regulation was authorized by the act. The purpose of the act is to prevent the contamination of drinking water and, pursuant to the act, the agency was charged with adopting regulations and administering the act in the town. See General Statutes § 22a-354p (f). The amendment at issue was introduced “to clarify that the repair and maintenance of all combustion engines is a regulated activity.” The agency had before it ample documentation that supported the proposed amendment, including reports concerning the environmental danger of internal combustion engine repair generally, as well as the contamination hazards inherent in lawn care businesses. Moreover, in a letter dated September 5, 2007, the department approved the agency’s proposed amendment, stating that it was “reasonably related to the purpose of groundwater protection” and consistent with the act. The record also reveals that on October 1, 2007, the department amended its model aquifer protection regulations to expressly include lawn mowers within its definition of “vehicles.”

On the basis of our review of the record, we conclude that the amendment was reasonably supported by the record and that the regulation was proper.

II

The defendants’ second claim is that the court improperly found the public notice for the hearing to be deficient. Judge Berdon determined that the notice was deficient because it failed to inform the public as to all of the issues that were discussed during the public hearing. The court reasoned that because this hearing was a “do-over” of the previous hearing that occurred in October, 2007, the agency was required to give notice of all of the issues which had been addressed in the previous hearing. We disagree that the notice was deficient.

To be adequate, the notice is required to fairly and sufficiently apprise those who may be affected of the nature and character of the action proposed, in order to make possible intelligent preparation for participation in the hearing. See Nazarko v. Zoning Commission, 50 Conn. App. 517, 519, 717 A.2d 853, cert. denied, 247 Conn. 941, 723 A.2d 318 (1998).

In this case the notice requirement was satisfied. Here, the agency proposed amending the regulations to include repairing lawn mowers with internal combustion engines as a “regulated activity.” The notice provided the public with sufficient information concerning the date, time, and location of the hearing. The notice also specifically listed the content of the amendments that were to be considered. The agency proposed a simple amendment to its regulations so that lawn mower repair would be included within the definition of a “regulated activity.” Any issues raised by the plaintiff outside of the proposed action were simply not relevant to the proceeding and surely did not trigger public notice. Notice is only required as to issues related to the action that the agency proposes. See Urbanowicz v. Planning & Zoning Commission, 87 Conn. App. 277, 298, 865 A.2d 474 (2005). For obvious reasons, a party cannot be permitted to expand the scope of an administrative hearing, and then on appeal, claim error when the notice does not encompass the issues that he introduced. On the basis of our review of the record, we conclude that the court improperly concluded that the agency’s notice was legally insufficient.

The judgment is reversed and the case is remanded with direction to render judgment dismissing the plaintiffs appeal.

In this opinion the other judges concurred.

       The commissioner was not a party to the agency’s regulation amendment process, but rather was served with the plaintiffs administrative appeal and appeared as a defendant before the Superior Court pursuant to General Statutes § 22a-354q (a). The commissioner advances the same principal claims in his appeal as those advanced by the town of Wallingford and the agency in their appeal.

       Following oral argument before this court, the plaintiff filed motions to dismiss each appeal for lack of subject matter jurisdiction pursuant to Practice Book § 66-8. The plaintiff contended that this court lacked jurisdiction because the agency’s act of amending its regulations was ultra vires. The defendants each opposed the motion filed in their respective appeals, arguing that the motions to dismiss were an attempt to introduce additional arguments not presented in the plaintiffs brief. The motions are denied. This court has jurisdiction over any final judgment of the Superior Court even if that court lacked jurisdiction. See Ajadi v. Commissioner of Correction, 280 Conn. 514, 534 n.22, 911 A.2d 712 (2006).

       The plaintiffs counsel who argued his appeal before this court did not represent him before the agency or in the Superior Court.

       General Statutes § 22a-354p (f) provides in relevant part: “Any regulations adopted by an agency under this section shall not be effective unless the Commissioner of Energy and Environmental Protection determines that such regulations are reasonably related to the purpose of groundwater protection .... A regulation adopted by a municipality shall not be deemed inconsistent if such regulation establishes a greater level of protection . . . .”

       We note that General Statutes § 22a-3541 expressly provides that the model regulations “may be considered by municipal aquifer protection agencies in adopting regulations pursuant to [the act].”

       At the previous hearing, the plaintiffs counsel argued that boundaries for the area subject to the regulations were improperly drawn and that there was no evidence that the plaintiffs business contaminated the groundwater.

       General Statutes § 22a-354p (b) provides in relevant part: “No regulations of an aquifer protection agency shall become effective or be established until after a public hearing in relation thereto is held by the agency at which parties in interest and citizens shall have an opportunity to be heard. Notice of the time and place of such hearing shall be published in the form of a legal advertisement, appearing at least twice in a newspaper having a substantial circulation in the municipality at intervals of not less than two days, the first not more than twenty-five days or less than fifteen days, and the last not less than two days, before such hearing, and a copy of such proposed regulation shall be filed in the office of the town, city or borough clerk, as the case may be, in such municipality, for public inspection at least ten days before such hearing, and may be published in full in such paper. . . .”

       The notice provided in relevant part: “Two (2) amendments to the Aquifer Protection Areas Regulations as follows:

        1. REPLACE SECTION 2, DEFINITIONS—RegulatedActivitywiththe following:
      D. Repair or maintenance of vehicles or internal combustion engines or transmissions, including but not limited to, those associated with vehicles, lawnmowers, snow blowers, lawn maintenance equipment, garden or landscaping equipment, farm equipment, compressors, which involve the use, storage, or disposal of hazardous material including solvents, lubricants, paints, brake fluids, transmission fluids or the generation of hazardous materials or wastes.
      2. REPLACE SECTION 2, DEFINITIONS—Vehicle(s) with the following:
      Includes any device propelled or drawn by any non-muscular power, including, without limitation, an automobile, aircraft, all-terrain vehicle, snowmobile or vessel.” (Emphasis in original.)


author: FLYNN, J.

text:
    STATE OF CONNECTICUT v. GRAHAM S.

    (AC 34613)
    Beach, Robinson and Flynn, Js.

      Argued December 2, 2013
    officially released April 8, 2014

      Craig A. Sullivan, assigned counsel, for the appellant (defendant).

      Matthew A. Weiner, deputy assistant state’s attorney, with whom, on the brief, were Maureen Platt, state’s attorney, and Karen Diebolt, assistant state’s attorney, for the appellee (state).

         In accordance with our policy of protecting the privacy interests of the victims of the crime of risk of injury to a child, we decline to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

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

   Opinion

FLYNN, J.

The defendant, Graham S., appeals from the judgment of conviction, rendered after a jury trial, of burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), unlawful restraint in the first degree in violation of General Statutes § 53a-95, assault in the third degree in violation of General Statutes § 53a-61 (a) (1), strangulation in the second degree in violation of General Statutes § 53a-64bb, and risk of injury to a child in violation of General Statutes § 53-21 (a) (1). On appeal, the defendant claims that the trial court erred (1) by permitting the victim to make reference to the defendant’s prior incarceration, in contravention of its prior ruling on this matter and, additionally, by not sua sponte declaring a mistrial after this testimony was given; (2) in rendering a judgment of conviction of unlawful restraint in the first degree, assault in the third degree, and strangulation in the second degree, in contravention of § 53a-64bb (b), and in violation of the fifth and fourteenth amendments to the United States constitution and article first, §§ 8 and 9, of the Connecticut constitution; and (3) in improperly instructing the jury on the requirement of a unanimous verdict to convict of burglary in the first degree, strangulation in the second degree, and risk of injury to a child. We affirm in part and reverse in part the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant and the victim had at one time been romantically involved with each other and had a daughter together. On March 18, 2011, the defendant accompanied the victim and their daughter to the victim’s apartment. The defendant and his daughter played together outside on the apartment’s porch while the victim retired to her bedroom where she eventually fell asleep. She next awoke to find the defendant in her bedroom, yelling at her and calling her names. The defendant’s rant “made no sense.” The victim asked him if he had been drinking. After initially denying it, the defendant admitted that he had been drinking. The victim asked the defendant to leave, which he did. The victim locked the door behind the defendant.

Approximately fifteen minutes after the defendant left the apartment, he began banging on the locked door. The victim asked the defendant to leave her and their daughter alone, telling him that they were going to sleep. Fifteen minutes later, the victim heard noises coming from the bathroom area. When she got up to investigate, she saw the defendant attempting to enter her apartment through her bathroom window. Fearing that she could not prevent the defendant from entering her apartment, the victim returned to her bedroom, where their daughter was sleeping, and locked the bedroom door.

The defendant gained entrance and remained in the apartment for thirty minutes. He became irate and, in a drunken tirade, yelled at the victim and demanded to see their daughter. Once the defendant had gained entrance, the victim told him to leave them alone, but she allowed him to sleep on her couch.

Eventually, the victim heard more banging coming from her daughter’s bedroom, which was separated from her bedroom by a wall. While lying in bed with her daughter, she observed the defendant open her bedroom window from outside. The defendant attempted to enter the victim’s bedroom through this window. The victim struggled to close and lock the window, but she soon realized that she would be overpowered by the defendant. At this point, the victim instructed her daughter to “call 911.” Upon hearing this, the defendant backed out of the window, reentered his daughter’s room and then broke through the victim’s bedroom door. As soon as he broke through the bedroom door “he said he’s not going back to jail.” The defendant proceeded to choke the victim until she could no longer breathe; she eventually lost consciousness and fell to the floor.

The victim awoke to her daughter screaming “we have to take mommy to the hospital.” The victim found blood on her hands, which had come from her mouth. The defendant became fearful that the victim would report what had happened to the police and demanded that she give him her telephone, which she refused to do. The victim reassured the defendant that she would not call the police; she asked him to leave them alone and told him that they we going back to sleep. The victim lay in bed with her daughter while the defendant continuously paced in and out of her bedroom throughout the night.

In the morning, the victim found the defendant asleep on her living room couch. The victim drove the defendant to his home in Meriden and then went directly to her father’s home. The victim’s father called the police. He then drove the victim to the hospital and then to the Watertown police station. The defendant was arrested thereafter.

Following a jury trial, the defendant was convicted of the crimes charged in the substitute long form information. The defendant was sentenced to twenty years of incarceration, suspended after nine years, and five years of probation for the conviction of burglary in the first degree; nine years of incarceration for the conviction of risk of injury to a child; five years of incarceration for the conviction of strangulation in the second degree; five years of incarceration for the conviction of unlawful restraint in the first degree; and one year of incarceration for the conviction of assault in the third degree, all to run concurrently, for a total effective sentence of twenty years of incarceration, suspended after nine years, and five years of probation. This appeal followed.

I

The defendant first claims that the court abused its discretion by permitting a witness for the state to make reference to his prior incarceration, in contravention of the court’s earlier ruling that had limited reference to the defendant’s prior convictions and uncharged acts of prior misconduct. Specifically, he claims that the court should not have overruled his objection to the victims’ testimony that after the defendant broke into her bedroom, he exclaimed that he was “not going back to jail” before proceeding to attack her. He further claims that the court should have, sua sponte, declared a mistrial after this testimony was offered. We disagree.

Prior to the commencement of trial, the defendant filed three motions seeking to prevent the state from introducing into evidence acts of prior criminal activity and uncharged misconduct on the part of the defendant. After listening to argument from counsel, the court held that the victim was precluded from “testify [ing] to other crimes committed against her that are uncharged.” Applying a balancing test, the court stated that “uncharged misconduct on the part of the defendant [is] not admissible because it’s more prejudicial than probative.” The court also held that the state could not make reference to the defendant’s prior convictions for assault in the third degree and risk of injury to a child. Significantly, however, the court did say that the victim may “testify to what she saw or heard or did that day.” The court also stated that “[i]f [the victim] blurts out inadmissible evidence after I’ve made a ruling, there will be a mistrial.”

During the state’s case-in-chief, the victim testified that the defendant attempted to break into her apartment through their daughter’s locked bedroom window; that she struggled to keep him out; and that when she realized that she would not be able to do so, she instructed her daughter to call 911. The prosecutor and the victim then had the following exchange:

“[The Prosecutor]: And then what happened?
“[The Victim]: As soon as I said, call 911, he went back in through her window, out of her room, and that’s when he pushed my door open. It was locked but he—
“[The Prosecutor]: And pushing it open, what happened to the door?
“[The Victim]: [It had] cracks in it.
“[The Prosecutor]: And did he get through that door?
“[The Victim]: Oh yeah.
“[The Prosecutor]: And was he saying anything at this time?
“[The Victim]: As soon as he got through that door, he said he’s not going back to jail.
“[Defense Counsel]: Objection, Judge. Reference to—
“[The Court]: Overruled.”

The defendant contends that the court abused its discretion by overruling his objection to the victim’s testimony that immediately prior to the attack, the defendant stated to her that he was “not going back to jail.” He argues that this statement should not have been allowed because its probative value was outweighed by the danger of unfair prejudice, and, alternatively, that the law of the case doctrine prohibited admission of this testimony. The defendant further argues that the court should have declared a mistrial once the victim made the challenged statement. We reject the defendant’s claims.

“It is well established that this court affords great deference to a trial court’s evidentiary rulings. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Citation omitted; internal quotation marks omitted.) State v. Douglas F., 145 Conn. App. 238, 246, 73 A.3d 915, cert. denied, 310 Conn. 955, 81 A.3d 1181 (2013). “We will make every reasonable presumption in favor of upholding the trial court’s ruling . . . .” (Internal quotation marks omitted.) State v. Kerr, 120 Conn. App. 203, 214, 991 A.2d 605, cert. denied, 296 Conn. 907, 992 A.2d 1136 (2010).

“When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the [impropriety] was harmful. . . . [T]he proper standard for determining whether an erroneous evidentiary ruling is harmless [is] . . . whether the jury’s verdict was substantially swayed by the error. State v. Sawyer, 279 Conn. 331, 357, 904 A.2d 101 (2006), overruled in part on other grounds by State v. DeJesus, 288 Conn. 418, 455 n.23, 953 A.2d 45 (2008) (enbanc). [A] nonconstitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict. ... Id. [W]hether [the improper admission of a witness’ testimony] is harmless in a particular case depends upon a number of factors, such as the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case. . . . Most importantly, we must examine the impact of the [improperly admitted] evidence on the trier of fact and the result of the trial.” (Citation omitted; internal quotation marks omitted.) State v. Kerr, supra, 120 Conn. App. 214.

We conclude that it was not improper for the court to overrule the defendant’s objection to the victim’s testimony that the defendant said he was “not going back to jail.” This statement was consistent with the court’s pretrial ruling that the victim may “testify to what she saw or heard or did that day.” The victim’s testimony was limited to reciting only what the defendant said to her immediately prior to the strangulation. The defendant’s statement was relevant for the permissible purpose of showing the defendant’s motive in strangling the victim, namely, to incapacitate her so that she could not call for emergency and police assistance. Therefore, the court did not abuse its discretion in admitting this evidence by overruling the defendant’s objection. For the same reasons, the defendant has also not shown that the court abused its wide discretion in failing to declare a mistrial on its own motion.

II

The defendant next claims that the trial court erred in rendering a judgment of conviction of unlawful restraint in the first degree, assault in the third degree, and strangulation in the second degree, in contravention of § 53a-64bb (b), and in violation of the fifth and fourteenth amendments to the United States constitution and article first, §§ 8 and 9, of the Connecticut constitution. The state concedes the defendant’s claim of error under § 53a-64bb (b). We agree that, pursuant to § 53a-64bb (b), it was error for the court to render a judgment of conviction of all three of these crimes.

A

We adhere to Justice Brandéis’ principle of constitutional avoidance. “[I]f a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.” Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S. Ct. 466, 80 L. Ed. 688 (1936) (Brandeis, J., concurring); see also State v. McCahill, 261 Conn. 492, 502, 811 A.2d 667 (2002). Because we are able to resolve the matter before us on statutory grounds, we do not address the defendant’s federal or state constitutional claims.

The claim presented is one of statutory construction, over which this court applies plenary review. State v. Adams, 308 Conn. 263, 269, 63 A.3d 934 (2013). “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.” (Internal quotation marks omitted.) Id., 270.

Our analysis begins with the statutory text. General Statutes § 53a-64bb (b) provides in pertinent part: “No person shall be found guilty of strangulation in the second degree and unlawful restraint or assault upon the same incident, but such person may be charged and prosecuted for all three offenses upon the same information.” We interpret this statute to mean three things. First, a person may not be convicted of strangulation in the second degree and unlawful restraint, upon the same incident. Second, a person may not be convicted of strangulation in the second degree and assault, upon the same incident. Third and finally, a person may not be convicted of strangulation in the second degree and both unlawful restraint and assault, upon the same incident. “In construction of statutes . . . courts are often compelled to construe or as meaning and, and again and as meaning or.” (Emphasis in original; internal quotation marks omitted.) United States v. Fisk, 70 U.S. (3 Wall.) 445, 447, 18 L. Ed. 243 (1865).

In the present case, the jury found the defendant guilty of strangulation in the second degree, unlawful restraint in the first degree, and assault in the third degree; all three verdicts were based upon the same incident. The court accepted this verdict, rendered a judgment of conviction as to each charge, and sentenced the defendant accordingly. The state and the defendant are in agreement that, as a matter of law, this was error. Cf. State v. Miranda, 142 Conn. App. 657, 664-65, 64 A.3d 1268 (convictions for first degree unlawful restraint and second degree strangulation upheld as involving separate and distinct incidents), cert. granted, 310 Conn. 902, 75 A.3d 29 (2013).

In this case on appeal, both the state and the defendant agree that the defendant could not be convicted under the facts presented of strangulation in the second degree, unlawful restraint in the first degree, and assault in the third degree. All three were charged in the same information and there was evidence that the defendant, with the intent to prevent the victim from breathing or restricting blood circulation, did impede her ability to breathe because she passed out and blood circulation was restricted, evidenced by blood in her mouth and petechial hemorrhaging.

The defendant further contends that because “[t]here is no language in the statutory prohibition that would impute greater or lesser significance to [strangulation in the second degree, unlawful restraint in the first degree, and assault in the third degree]” this court is without guidance to determine which of those convictions for those crimes may stand, and which must fall, pursuant to § 53a-64bb (b). We disagree. The statutory structure suggests that the legislature, through § 53a-64bb (b), intended to permit a conviction for strangulation, assault or unlawful restraint—but not convictions for all three when charged in the same information and stemming from the same incident.

In its brief, the state concedes that the same act served as the basis for the charges of strangulation, assault, and unlawful restraint, because the prosecution’s closing argument at trial stated this. The enactment of a later statute specifically addressing and tailored to strangulation as a separate crime, and prohibiting assault and unlawful restraint convictions, is a strong indication to us that it is the strangulation conviction which should be the one of the three convictions that stands. Accordingly, the judgment of conviction for unlawful restraint in the first degree and assault in the third degree must be reversed.

B

The defendant and the state disagree, however, on the appropriate remedy. The defendant argues that he is entitled to a new trial, or, alternatively, anew sentencing proceeding. The state argues that a new sentencing proceeding is unnecessary in light of the trial court’s clear sentencing intent. Rather, the state urges this court to remand the case to the trial court with instructions to vacate only the unlawful restraint in the first degree and assault in the third degree convictions and accompanying sentences. We agree with the state that neither a new trial nor a new sentencing proceeding is necessary.

Where a defendant is convicted of multiple crimes, some of which are later determined to be invalid, only the affected convictions must be vacated; the other lawful convictions may be permitted to stand. State v. Johnson, 137 Conn. App. 733, 757-58, 49 A.3d 1046, cert. granted on other grounds, 307 Conn. 927, 55 A.3d 568 (2012), cert. granted, 308 Conn. 938, 66 A.3d 881 (2013).

We have held that when some of a defendant’s convictions are reversed, and the trial court clearly intended that a nonreversed conviction “control its sentencing scheme,” remand for resentencing is not necessary where reversing the improper convictions and vacating the accompanying sentences will not frustrate the trial court’s intent. State v. Dieudonne, 109 Conn. App. 375, 378-79, 952 A.2d 69, cert. denied, 289 Com. 924, 958 A.2d 154 (2008). We said in Dieudonne that when a court’s intent is clear that a nonreversed conviction should control its sentencing scheme, “we can discern no reason why the court should again be required to exercise its sentencing discretion.” Id., 379; see also State v. Martin M., 143 Com. App. 140, 147-48, 70 A.3d 135 (remand remedy following reversal of conviction unnecessary when it was clear that trial court did not rely on reversed conviction when imposing sentence and sentence imposed for reversed conviction was served concurrently, thus having “essentially no punitive effect”), cert. denied, 309 Conn. 919, 70 A.3d 41 (2013).

In the present case, it is evident that the court intended that the defendant’s sentence for burglary in the first degree be the controlling sentence. The court sentenced the defendant to twenty years of incarceration, suspended after nine years, and five years of probation, for the burglary conviction. The defendant was sentenced to shorter, concurrent sentences for his other four convictions. The court specifically explained: “All those sentences are concurrent with each other, the effective sentence is twenty years suspended after nine, [with] five years probation . . . .” It is evident from the record, therefore, that the sentence imposed for burglary was designed to be the controlling sentence. As such, remanding the case for a new sentencing proceeding is unnecessary and would constitute a waste of judicial resources.

Ill

Finally, the defendant claims that the court erred in its instruction to the jury on the requirement of a unanimous verdict. Specifically, the defendant claims that given the alternative acts charged for each offense, the trial court erred in failing to instruct the jury that it must unanimously agree on the factual basis to find the defendant guilty of burglary in the first degree, strangulation in the second degree, and risk of injury to a child. We disagree.

“In State v. Famiglietti, 219 Conn. 605, 619-20, 595 A.2d 306 (1991), our Supreme Court set forth the applicable principles governing specific unanimity charges: [W]e have not required a specific unanimity charge to be given in every case in which criminal liability may be premised on the violation of one of several alternative subsections of a statute. We have instead invoked a multipartite test to review a trial court’s omission of such an instruction. We first review the instruction that was given to determine whether the trial court has sanctioned a nonunanimous verdict. If such an instruction has not been given, that ends the matter. Even if the instructions at trial can be read to have sanctioned such a nonunanimous verdict, however, we will remand for a new trial only if (1) there is a conceptual distinction between the alternative acts with which the defendant has been charged, and (2) the state has presented evidence to support each alternative act with which the defendant has been charged.” (Emphasis omitted; internal quotation marks omitted.) State v. Brodia, 129 Conn. App. 391, 402, 20 A.3d 726, cert. denied, 302 Conn. 913, 27 A.3d 373 (2011).

The defendant contends that the court’s instructions were inadequate because they did not instruct the jury that it had to unanimously agree on the factual basis to find him guilty of burglary in the first degree, strangulation in the second degree, and risk of injury to a child. With respect to the charge for burglary, the defendant contends that given the alternative evidence presented at trial, the court erred by failing to the instruct the jury that it “needed to be unanimous in deciding whether the defendant either knowingly and unlawfully entered the building or whether he, alternatively, knowingly and unlawfully remained in the building.” With respect to the charge for strangulation, the defendant argues that given the alternative evidence presented at trial, the court erred by not instructing the jury that it “needed to be unanimous in deciding [1] whether the defendant either intended to impede [the victim’s] ability to breathe, or, alternatively, intended to restrict her blood circulation; and [2] whether the defendant either impeded [the victim’s] ability to breathe, or alternatively, restricted her blood circulation.” Finally, with respect to the charge of risk of injury to a child, again, given the alternative evidence presented at trial, the defendant claims error in that the court “failed to instruct [the jury] that [it] also needed to be unanimous in deciding whether the defendant either caused the child to be placed in a situation inimical to the child’s physical welfare, or alternatively, the defendant permitted the child to be placed in a situation inimical to the child’s physical welfare.” We are not persuaded.

As was the case in Famiglietti, “the court’s . . . final charge included a general unanimity instruction but did not specifically relate this requirement to the alternative elements [for each] of the [crimes] with which the defendant has been charged.” State v. Famiglietti, supra, 219 Conn. 619. Moreover, our thorough review of the court’s jury charge reveals a complete absence of any language expressly sanctioning a non-unanimous verdict, which is fatal to the defendant’s claim on appeal. “With respect to the first prong of Famiglietti, namely, whether the trial court’s jury instructions have sanctioned a nonunanimous verdict, it is well established that the absence of language expressly sanctioning a nonunanimous verdict means that the defendant has not met the first part of the Famiglietti test. . . . Indeed, if the trial court did not sanction a nonunanimous verdict we need not address the other parts of the Famiglietti test.” (Emphasis in original; internal quotation marks omitted.) State v. Brodia, supra, 129 Conn. App. 403. Furthermore, the court instructed the jury no less than seven times throughout the course of the trial that its verdict must be unanimous; including on all three charges the defendant now claims were erroneous. Therefore, the defendant’s claim fails as a matter of law.

The judgment is reversed with respect to the convictions for unlawful restraint in the first degree and assault in the third degree, and the case is remanded with direction to vacate those convictions and the sentences thereon. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The commentary to the Connecticut Code of Evidence § 4-5 (b) indicates: “For other crimes, wrongs or acts to be admissible, the court must determine that the evidence is probative of one or more of the enumerated purposes for which it is offered, and that its probative value is not outweighed by the prejudicial effect.” See also State v. McPhee, 58 Conn. App. 501, 510, 755 A.2d 893, cert. denied, 254 Conn. 920, 759 A.2d 1026 (2000).

       The defendant also argues that when the court overruled his objection, it went against its previous ruling, and, therefore, was in contravention of the law of the case doctrine. The law of the case doctrine is a prudential limitation which encourages the court to avoid contradicting a prior interlocutory ruling. See Dept. of Transportation v. White Oak Corp., 141 Conn. App. 738, 764-65, 62 A.3d 599, cert. granted on other grounds, 309 Conn. 910, 69 A.3d 307 (2013). The state asserts that the doctrine is not applicable in this type of situation. Because we conclude that the court’s ruling was consistent with its prior rulings, we need not determine whether the law of case doctrine could be applicable.

       See Conn. Code Evid. § 4-5 (b).

        Dieudonne relied on our Supreme Court’s decision in State v. Chicano, 216 Conn. 699, 714, 584 A.2d 424 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991), abrogated on other grounds, State v. Polanco, 308 Conn. 242, 61 A.3d 1084 (2013). We readPohmco to be confined to the specific issue our Supreme Court addressed in that case, namely, merger of convictions for greater and lesser included offenses. State v. Polanco, supra, 248-49 and 248 n.3. In Polanco, relying principally on the United States Supreme Court’s decision in Rutledge v. United States, 517 U.S. 292, 116 S. Ct. 1241, 134 L. Ed. 2d 419 (1996), our Supreme Court held that, “when a defendant is convicted of greater and lesser included offenses, the trial court shall vacate the conviction for the lesser offense rather than merging it with the conviction for the greater offense.” State v. Polanco, supra, 260. None of the crimes at issue here are lesser included offenses. Accordingly, we do not believe that Pohmco or Rutledge vitiates our holding in Dieudonne.

       The defendant raises this unpreserved claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), which authorizes certain constitutional claims to be made for the first time on appeal. The state does not contest its reviewability, but maintains that the defendant’s claim fails as a matter of law under State v. Famiglietti, 219 Conn. 605, 595 A.2d 306 (1991).

       On the charge of burglary in the first degree, the court instructed the jury: “The state must prove beyond a reasonable doubt that the defendant (1) unlawfully entered or remained in a building; (2) that he had the intent to commit a crime therein, and (3) that he intentionally inflicted a bodily injury on the victim.”

       On the charge of strangulation in the second degree, the court instructed the jury: “The state must prove beyond a reasonable doubt that (1) the defendant restrained [the victim] by the neck or throat; (2) that he specifically intended to impede [the victim’s] ability to breathe or to restrict her blood circulation; [and] (3) that he impeded [the victim’s] ability to breathe or restricted her blood circulation.”

       On the charge of risk injury to a child, the court instructed the jury: “The state must prove beyond a reasonable doubt that (1) the defendant wilfully or unlawfully caused or permitted the minor to be placed in a situation, (2) the situation endangered her health, and (3) the minor was under sixteen years of age at the time.”


author: FOTI, J.

text:
    ANDREW CIMMINO v. MARIA MARCOCCIA
    (AC 34961)
    Beach, Sheldon and Foti, Js.

      Submitted on briefs November 21, 2013
    officially released April 8, 2014

      George Jepsen, attorney general, and Philip Miller, assistant attorney general, filed a brief for the appellants (defendant Christina Ghio et al.).

      Josephine Smalls Miller filed a brief for the appel-lee (plaintiff).
   Opinion

FOTI, J.

The defendants Christina Ghio and Robert Teitelman appeal from the judgment of the trial court denying their motion to dismiss counts seven through ten of the eighth amended complaint filed by the plaintiff, Andrew Cimmino, for want of subject matter jurisdiction. On appeal, the defendants claim that the court improperly concluded that the claims presented in counts seven, eight, nine, and ten of that complaint (1) were not barred by the doctrine of sovereign immunity, and (2) were not subject to statutory immunity pursuant to General Statutes § 4-165. We agree that the claims against the defendants are barred by the doctrine of sovereign immunity and, accordingly, reverse the judgment of the trial court.

The record reveals the following procedural history. On March 16, 2009, the plaintiff, the former principal of Thomas Hooker Elementary School in Bridgeport (school), commenced this action against the named defendant, Maria Marcoccia, alleging vexatious suit and intentional infliction of emotional distress. On February 26, 2010, the court granted the plaintiffs motion for permission to file his fifth amended complaint and to cite in Sally Lyddy and Ellen Tiedman, a former employee and current employee of Bridgeport Public Schools, respectively, and the Bridgeport Board of Education (board) as additional defendants. On January 23, 2012, the court granted the plaintiffs motion for permission to file his eighth amended complaint and to cite in additional defendants, and the plaintiff cited in the defendants in the present appeal, Ghio and Teitel-man, in their “individual capacities only.”

At all times relevant to the allegations in the plaintiffs complaint, Ghio was employed as an attorney by the Office of the Child Advocate and Teitelman was employed as an assistant attorney general. In his complaint, with respect to both Ghio, in counts seven and eight, and Teitelman, in counts nine and ten, the plaintiff alleged tortious interference with contract and intentional infliction of emotional distress. On the basis of the allegations against the defendants, the plaintiff sought compensatory and punitive damages, as well as “such relief as may be deemed appropriate” by the court.

On March 29, 2012, the defendants moved to dismiss counts seven, eight, nine, and ten of the plaintiffs complaint for lack of subject matter jurisdiction, contending that the claims therein were barred by the doctrine of sovereign immunity or, alternatively, by the defense of statutory immunity pursuant to § 4-165. The court denied the defendants’ motion with respect to the defendants’ claims of sovereign immunity. The court ruled that the doctrine did not apply because: (1) the defendants had been sued in their individual capacities only, (2) the complaint contained allegations that the defendants exceeded their statutory authority, and (3) the complaint did not seek money damages from the state. With respect to the claims of statutory immunity pursuant to § 4-165, the court ruled that statute did not apply because it only immunizes state employees from liability for negligence, not “the type of wilful and intentional conduct alleged against both defendants” in the complaint. This appeal followed.

“As we must in reviewing a motion to dismiss, we take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.” (Internal quotation marks omitted.) Miller v. Egan, 265 Conn. 301, 305, 828 A.2d 549 (2003). In his complaint, the plaintiff alleged the following facts: Between 2001 and 2012, the plaintiff served as principal of the school. In October, 2004, the plaintiff was the subject of an investigation by the Bridgeport Police Department regarding an alleged incident of child abuse that had occurred in the spring of 2002. The Department of Children and Families (department) conducted an investigation into the same allegations in December, 2005. Both investigations terminated in favor of the plaintiff.

In April, 2008, a department employee contacted the plaintiff to inform him that he was again under investigation in connection with the 2002 allegations. During the course of the April, 2008 investigation, four photographs relating to the allegations were presented to the plaintiff. The photographs, which were the impetus for the department’s renewal of its investigation, were taken by Marcoccia, an employee at the school. Marcoccia delivered the photographs to the department in retaliation for the plaintiffs attempts to reveal her fraudulent misappropriation of school funds. The April, 2008 investigation terminated in favor of the plaintiff.

Thereafter, in July, 2009, Marcoccia, Lyddy, and Tied-man met with John DiDonato, the assistant superintendent of Bridgeport public schools, to present renewed allegations against the plaintiff in connection with the 2002 incident. Dining this meeting, they supplied DiDo-nato with the photographs that Marcoccia previously had delivered to the department in April, 2008. Also in July, 2009, Ghio, on behalf of the Office of the Child Advocate, and Teitelman, on behalf of the Office of the Attorney General, as part of a broader inquiry into school district responses to child abuse, initiated an investigation into the board’s response to the allegations of child abuse made against the plaintiff in connection with the 2002 allegations. In the course of their investigation, the defendants summoned John Ramos, the superintendent of Bridgeport public schools, to Hartford, where they questioned him and showed him photographs, which were the same photographs taken by Marcoccia of the child abuse allegedly perpetrated by the plaintiff in 2002. After showing the photographs to Ramos, the defendants asked him “what he intended to do about what was depicted in the photographs.” As a result of the defendants’ pressuring Ramos to take action against the plaintiff, the board initiated a renewed report with the department concerning the 2002 allegations against the plaintiff, placed him on administrative leave effective September 11, 2009, and conducted an internal investigation into the allegations. During the internal investigation, the attorney for the board wrote to the Department of Education regarding the plaintiffs pending application for recertification. The attorney enclosed copies of the renewed report made by the board in his correspondence. The plaintiff later learned that approval of his pending recertification was deferred as a result of the internal investigation. In addition, his employment contract was terminated effective June 16, 2010.

The defendants claim that the trial court improperly denied their motion to dismiss the claims asserted against them on the basis of sovereign immunity. Specifically, the defendants contend that, although the plaintiffs complaint purports to sue them in their individual capacities only, the state nevertheless is the real party in interest pursuant to the four-prong test first articulated in Somers v. Hill, 143 Conn. 476, 123 A.2d 468 (1956), and later expounded upon in Spring v. Constantino, 168 Conn. 563, 362 A.2d 871 (1975). To the extent that the state is the real party in interest, the defendants further contend that the plaintiffs claims against them are barred by the doctrine of sovereign immunity. We agree with the defendants.

We begin by setting forth the applicable standard of review and relevant principles of law. “The standard of review for a court’s decision on a motion to dismiss is well settled. A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [0]ur review of the court’s ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo. ... In addition, [sjovereign immunity relates to a court’s subject matter jurisdiction over a case, and therefore [also] presents a question of law over which we exercise de novo review. ... In so doing, we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record. . . . The principle that the state cannot be sued without its consent, or sovereign immunity, is well established under our case law. ... It has deep roots in this state and our legal system in general, finding its origin in ancient common-law. . . . Not only have we recognized the state’s immunity as an entity, but [w]e have also recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state. . . . Exceptions to this doctrine are few and narrowly construed under our jurisprudence.” (Citation omitted; emphasis omitted; internal quotation marks omitted.) Chief Information Officer v. Computers Plus Center, Inc., 310 Conn. 60, 79-80, 74 A.3d 1242 (2013).

In the present case, although the plaintiff purports to sue the defendants in their individual capacities and the state is not named as a defendant, we do not determine “[w]hether a particular action is one against the state . . . solely by referring to the parties of record.” (Internal quotation marks omitted.) Kenney v. Weaving, 123 Conn. App. 211, 215-16, 1 A.3d 1083 (2010). “[T]he fact that the state is not named as a defendant does not conclusively establish that the action is not within the principle which prohibits actions against the sovereign without its consent. . . . The vital test is to be found in the essential nature and effect of the proceeding.” (Internal quotation marks omitted.) Spring v. Constantino, supra, 168 Conn. 568. “To determine whether an action is against the state or against a defendant in his individual capacity, we look to the four criteria established by our Supreme Court in [Somers v. Hill, supra, 143 Conn. 479-80] and . . . explained ... in [Spring v. Constantino, supra, 568]. If all four criteria are satisfied, the action is deemed to be against the state and, therefore, is barred.” Kenney v. Weaving, supra, 216. Accordingly, we must determine whether “(1) a state official has been sued; (2) the suit concerns some matter in which that official represents the state; (3) the state is the real party against whom relief is sought; and (4) the judgment, though nominally against the official, will operate to control the activities of the state or subject it to liability.” Spring v. Constantino, supra, 568.

Beginning with the first criterion, it is undisputed that the defendants are both state officials, satisfying the first criterion. With respect to the second criterion, the action against the defendants stems from their interview with Ramos. The defendants interviewed Ramos in connection with a joint investigation initiated by the Office of the Child Advocate and the Office of the Attorney General. Although it appears that any claim arising from the defendants’ interview with Ramos would plainly concern a matter in which they were acting on behalf of the state, the plaintiff argues that when the defendants asked Ramos what he intended to do about the depictions in the photographs, they implicitly urged him to take action against the plaintiff. In doing so, the plaintiff argues that the defendants acted beyond the scope of their official functions and, consequently, the suit is not directed at a matter in which the defendants were acting on behalf of the state. The plaintiffs argument fails, however, as the statutorily authorized joint investigation “included an in-depth examination of five school districts in Connecticut,” including Bridgeport, and sought to explore both “the manner in which allegations that school employees have abused and/or neglected children are addressed,” and “the responses of local school districts, [the department], and the State Department of Education.” When the defendants asked Ramos what he intended to do about the depictions in the photographs, they were acting in furtherance of a joint investigation authorized by statute and initiated by the state agencies that employed them. Accordingly, because the action against the defendants concerns a matter in which they represented the state, the second criterion is satisfied.

Turning to the third criterion, the plaintiff argues that he unequivocally sued the defendants in their individual capacities only and that these allegations establish “that the state is not the real party against whom relief is sought.” The plaintiff seeks damages allegedly caused by the conduct of the defendants in the discharge of their official duties, namely, conducting a joint investigation into “the manner in which allegations that school employees have abused and/or neglected children are addressed.” That the plaintiff purports to sue the defendants only in their individual capacities is not, in itself, determinative of whether the state is the real party in interest. See Sullins v. Rodriguez, 281 Conn. 128, 136, 913 A.2d 415 (2007) (“test set forth in Spring and Miller is an appropriate mechanism ... to determine the capacity in which the named defendants are sued in actions asserting violations of state law”); Kenney v. Weaving, supra, 123 Conn. App. 215-16 (we do not determine whether action is against state solely by referring to parties of record). The damages sought by the plaintiff are premised entirely on injuries alleged to have been caused by the defendants in performing acts that were part of their official duties. We conclude that the state is the real party in interest and, accordingly, the third criterion is satisfied. See Somers v. Hill, supra, 143 Conn. 480 (state real party in interest where damages sought for injuries allegedly caused by commissioner in carrying out acts for which state employed him); Macellaio v. Newington Police Dept., 142 Conn. App. 177, 181, 64 A.3d 348 (2013) (“third criterion [of Spring test] . . . met because damages are sought for injuries allegedly caused by the defendant for performing acts that are a part of his official duties such that the state is the real party against whom relief is sought”); Kenney v. Weaving, supra, 216-17 (same).

Finally, the fourth criterion, that the judgment, though nominally against state officials, will operate to control the activities of the state, is also satisfied. Any judgment against the defendants would impact the manner in which state officials conduct investigations. Hultman v. Blumenthal, 67 Conn. App. 613, 621, 787 A.2d 666, cert. denied, 259 Conn. 929, 793 A.2d 263 (2002).

In sum, because the criteria in Spring are satisfied, we conclude that the plaintiffs complaint alleged claims against the defendants in their official capacities. The action against the defendants is, in effect, against the state. This conclusion does not end our inquiry, however, as “[t]he sovereign immunity enjoyed by the state is not absolute.” (Internal quotation marks omitted.) Macellaio v. Newington Police Dept., supra, 142 Conn. App. 183 n.6. There are three exceptions to the doctrine of sovereign immunity: “(1) when the legislature, either expressly or by force of a necessary implication, statutorily waives the state’s sovereign immunity ... (2) when an action seeks declaratory or injunctive relief on the basis of a substantial claim that the state or one of its officers has violated the plaintiffs constitutional rights . . . and (3) when an action seeks declaratory or injunctive relief on the basis of a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer’s statutory authority.” (Internal quotation marks omitted.) Id. In the present case, the plaintiff seeks money damages for harm caused by the defendants in the discharge of their official duties. The plaintiff has not directed us to any statute indicating that the legislature has waived sovereign immunity for this action. Moreover, the plaintiff does not seek declaratory or injunctive relief. The action does not fall within any recognized exception to the doctrine of sovereign immunity and is, therefore, barred. Accordingly, the trial court improperly denied the defendants’ motion to dismiss for want of subject matter jurisdiction.

The judgment denying the defendants’ motion to dismiss is reversed and the case is remanded with direction to grant the motion, and to render judgment dismissing counts seven, eight, nine, and ten of the complaint.

In this opinion the other judges concurred.

       Although there are additional defendants before the trial court, the motion to dismiss brought by Ghio and Teitelman is the subject of the present appeal. In this opinion, we refer to Ghio and Teitelman collectively as the defendants, and to them individually by name where appropriate.

       In light of this conclusion, we need not address whether the defendants were entitled to the defense of statutory immunity pursuant to General Statutes § 4-165. “[I]f sovereign immunity does not apply to the claim against [a state official] in her official capacity, the statutory immunity may then apply to the claim against her in her individual capacity. Thus, before determining whether and to what extent the defendants are shielded by the statutory immunity provided by § 4-165, it is appropriate to determine whether the claims against them are barred by the common-law doctrine of sovereign immunity.” Shay v. Rossi, 253 Conn. 134, 162-63, 749 A.2d 1147 (2000), overruled in part on other grounds by Miller v. Egan, 265 Conn. 301, 325, 828 A.2d 549 (2003).

       The eighth amended complaint is the operative complaint. For purposes of clarity, we refer in this opinion to the operative complaint as the complaint.

       “The general rule is that the denial of a motion to dismiss is an interlocutory ruling and, therefore, is not a final judgment for purposes of appeal. . . . The denial of a motion to dismiss based on a colorable claim of sovereign immunity, by contrast, is an immediately appealable final judgment because the order or action so concludes the rights of the parties that further proceedings cannot affect them.” (Citation omitted; internal quotation marks omitted.) Miller v. Egan, 265 Conn. 301, 303 n.2, 828 A.2d 549 (2003). There is no dispute that the defendants’ claim of sovereign immunity is colorable. Accordingly, we consider the merits of the defendants’ claim that the court improperly denied their motion to dismiss.

       In his complaint, the plaintiff alleged that neither Marcoccia nor Lyddy were employed by Bridgeport Public Schools in July, 2009. Tiedman, however, was employed by Bridgeport Public Schools when the group approached DiDonato in July, 2009.

       In Ids brief before this court, the plaintiff concedes that the defendants are state officials. In addition, the complaint alleges that the defendants, “at all times relevant herein,” have been attorneys and agents for “the Office of the Child Advocate” and “the Connecticut Office of the Attorney General,” respectively.

       The joint investigation was initiated pursuant to General Statutes §§ 3-125 (a) and 46a-13i (a). Section 46a-13I (a) provides in relevant part: “The Child Advocate shall ... (1) Evaluate the delivery of services to children by state agencies and those entities that provide services to children through funds provided by the state . . . (3) Review complaints of persons concern-mg the actions of any state or municipal agency providing services to children . . .

       The complaint alleges that the defendants caused harm to the plaintiff when they asked Ramos, the superintendent of Bridgeport public schools, what he intended to do about depictions of alleged child abuse in certain photographs. We agree with the defendants that holding state actors liable for inquiring whether schools are adequately addressing allegations of inappropriate conduct within their districts, especially when such inquiries are part of an investigation authorized by statute, would inhibit the efforts of the Office of the Child Advocate to discharge its statutory mandate.