text:
    GINA MCCARTHY, COMMISSIONER OF ENVIRONMENTAL PROTECTION v. CADLEROCK PROPERTIES JOINT VENTURE, L.P.
    (AC 32293)
    Beach, Alvord and Borden, Js.

      Argued September 14
    officially released November 15, 2011

      Michael G. Albano, for the appellant (defendant).

      Sharon M. Seligman, assistant attorney general, with whom were David H. Wrinn, assistant attorney general, and, on the brief, Richard Blumenthal, former attorney general, and Patricia A. Horgan and Kimberly P. Massicotte, assistant attorneys general, for the appellee (plaintiff).
   Opinion

BORDEN, J.

The defendant, Cadlerock Properties Joint Venture, L.P., appeals from the judgment of the trial court ordering permanent injunctive relief that requires it to comply with a 1997 order of the plaintiff, Gina McCarthy, the former commissioner of environmental protection, and assessing a civil penalty of $282,000 for noncompliance with that order. The defendant claims that the court (1) improperly considered the liability and financial resources of nonparties in assessing a civil penalty and (2) failed to assess properly the defendant’s ability to pay a civil penalty. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. The defendant is a limited partnership under the laws of Ohio with a principal place of business in Newton Falls, Ohio, and is not registered to do business in Connecticut. The general partner of the defendant is Cadlerock, Inc., an Ohio corporation. Daniel C. Cadle was the president of Cadlerock, Inc., until 2008, and is now the chairman of Cadlerock, Inc., and The Cadle Company. Cadle is also the sole shareholder of Cadlerock, Inc., and The Cadle Company. The defendant buys real estate and loans, obtains title to those properties and obtains financing from banks jointly with Cadlerock Joint Venture, L.P., an affiliated entity, whose general partner is also Cadlerock, Inc.

The defendant is the owner of 335 acres of real property located between 392 and 460 Squaw Hollow Road in the towns of Willington and Ashford. The defendant obtained ownership of the property by deed dated November 15, 1996, from an affiliated entity, Cadle Properties of Connecticut, Inc. That entity obtained ownership of the property on September 7, 1995, via a deed in lieu of foreclosure from Ashford Development Company in connection with a loan owed to Cadle Company of Connecticut, Inc., another affiliated entity.

On August 15, 1997, the plaintiff issued to the defendant the administrative order in question, namely, department of environmental protection pollution abatement order number SRD-088. Following issuance of the order, the defendant administratively appealed the plaintiffs order. A hearing was held before a department of environmental protection hearing officer over the course of five days, and a final decision affirming the order was issued on October 23, 1998. The final decision was affirmed by the Superior Court on May 5, 1999. The order applied to the entire property.

After years of noncompliance, the plaintiff commenced this enforcement action in September, 2007. After a trial, the court rendered judgment ordering permanent injunctive relief requiring the defendant to comply with the order and assessing a civil penalty of $282,000 for noncompliance therewith. This appeal followed. Additional facts will be set forth as necessary.

The defendant frames its argument in its brief as two separate and distinct claims, namely, that the court (1) improperly considered the liability and financial resources of nonparties in assessing a civil penalty; and (2) failed to assess properly the defendant’s ability to pay a civil penalty. We note, however, that the arguments in support of these two claims overlap significantly because the ability of a defendant to pay a civil penalty is but one component of the “size of the business involved” factor used by our courts in assessing civil penalties. See Keeney v. L & S Construction, 226 Conn. 205, 214, 626 A.2d 1299 (1993). Therefore, because of this significant, substantive overlap, we treat the two claims as one, namely, that, in employing the “size of the business involved” factor pursuant to General Statutes § 22a-438 (a), the court improperly considered the liability and financial resources of nonparties. We disagree.

The court imposed the penalty in question pursuant to § 22a-438 (a), which gives it the discretion to assess penalties for violations of environmental statutes. See Keeney v. Old Saybrook, 237 Conn. 135, 168, 676 A.2d 795 (1996). We therefore review the court’s decision to impose a civil penalty to determine whether it abused its discretion. “When reviewing claims under an abuse of discretion standard, the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness . . . .” (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 274, 819 A.2d 773 (2003); see also Rocque v. Light Sources, Inc., 275 Conn. 420, 442, 881 A.2d 230 (2005).

General Statutes §§ 22a-226 (a) and 22a-438 (a) provide for the assessment of civil penalties against those who have been found by a court to have violated the Solid Waste Management Act, General Statutes § 22a-207 etseq., and the Water Pollution Control Act, General Statutes § 22a-416 et seq. Penalties may be assessed both for each violation and for each day that the violation occurred. In determining the amount of penalties for which a defendant may be liable, § 22a-438 (a) provides that a court “may consider the nature, circumstances, extent and gravity of the violation, the person or municipality’s prior history of violations, the economic benefit resulting to the person . . . from the violation, and such other factors deemed appropriate by the court. ...” In Carothers v. Capozziello, 215 Conn. 82, 103-104, 574 A.2d 1268 (1990), our Supreme Court set forth additional factors to be considered by a court in assessing civil penalties pursuant to § 22a-226, and in Keeney v. L & S Construction, supra, 226 Conn. 214-15, the court held that those factors also guide courts in assessing penalties under § 22a-438. The factors “include, but are not limited to: (1) the size of the business involved; (2) the effect of the penalty or injunctive relief on its ability to continue operation; (3) the gravity of the violation; (4) the good faith efforts made by the business to comply with applicable statutory requirements; (5) any economic benefit gained by the violations; (6) deterrence of future violations; and (7) the fair and equitable treatment of the regulated community.” Carothers v. Capozziello, supra 103-104.

The defendant’s contention focuses on the first of those factors, namely, the “size of the business involved” in the polluting activity. In this particular instance, the defendant portrays the company in question as an individual entity with no checking account and asserts that its only asset is the 335 acre property that is subject to the order. As the court properly concluded, however, the size of the business in question is considerably greater.

In reaching its conclusion, the court found that the defendant, its general partner Cadlerock, Inc., and Cadlerock Joint Venture, L.P., maintain a business operation large enough to sustain a debt of over $24 million. Furthermore, the court found that the defendant does not act in isolation; rather, its finances are inextricably intertwined with Cadlerock Joint Venture, L.P., and Cadlerock, Inc., and all three companies are under the control of the same person, Cadle.

We conclude that the factual findings of the court and the supporting evidence adequately support the court’s conclusion that the size of the business involved in the polluting activity is not, under these circumstances, limited to the sole corporate entity that is the defendant in this enforcement action. Because the defendant does not have a checking account and thus does not control its own finances, it is reasonable to conclude that either The Cadle Company or another affiliated entity or person makes the decisions regarding when funds will be expended on behalf of the defendant. Furthermore, from 2005 to 2009, millions of dollars of revenue were coming into the defendant company from the sale of properties, yet, as Cadle testified, the money was deposited into a U.S. Bank National Association account from which Cadlerock, Inc., could withdraw money. In addition, Cadle and The Cadle Company have paid legal bills on behalf of the defendant. Thus, the evidence supports the court’s conclusion that there are sufficient financial resources readily available to the defendant and that the decision whether to expend those financial resources is controlled by Cadle and his affiliated entities.

Consequently, the fact that resources flow, relatively freely, through this network of interrelated entities that are substantially controlled by the same individual, Cadle, supports the conclusion that these organizations should be considered together when determining the size of the business involved in the polluting activity. Under these circumstances, it would require the court to blink at reality to deny it the discretion to take into account the size of the entire interlocking and interrelated business enterprise in determining the size of the business involved in the polluting activity.

Furthermore, to the extent that the defendant specifically argues that the court improperly assessed the defendant’s ability to pay a civil penalty in its determination of the size of the business involved because of the defendant’s limited financial resources, we are unable to review that claim. “It is well established that [i]t is the responsibility of the appellant to provide an adequate record for review as provided in Practice Book §61-10.” (Internal quotation marks omitted.) Calo-Turner v. Turner, 83 Conn. App. 53, 56, 847 A.2d 1085 (2004). Practice Book § 61-10 provides in relevant part: “The term ‘record’ . . . includes all trial court decisions, documents and exhibits necessary and appropriate for appellate review of any claimed impropriety.” The defendant failed to satisfy its fundamental appellate requirement to provide this court with the transcripts of the trial proceedings on which it bases its claims.

The defendant devotes approximately five pages of its appellate brief to outlining the reasons why it would be unable to pay any sort of a civil penalty. In support of this argument, the defendant cites extensively to transcripts from the trial proceedings that it did not provide to this court. Furthermore, the plaintiff does not concede the underlying facts that the defendant uses to support its claim of financial distress. “[B]ecause the defendant failed to present an adequate record for review, [w]e . . . are left to surmise or speculate as to the existence of a factual predicate for the trial court’s rulings. Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by the trial court.” (Internal quotation marks omitted.) Knutson Mortgage Corp. v. Bernier, 67 Conn. App. 768, 773, 789 A.2d 528 (2002). “Conclusions of the trial court cannot be reviewed where the appellant fails to establish through an adequate record that the trial court incorrectly applied the law or could not reasonably have concluded as it did . . . .” (Internal quotation marks omitted.) Bradley v. Randall, 63 Conn. App. 92, 95-96, 772 A.2d 722 (2001).

The judgment is affirmed.

In this opinion the other judges concurred.

       Sidney J. Holbrook was the commissioner when the order was issued.

       The plaintiff had proposed a total penalty of $1,935,000. She calculated that penalty as follows: (1) $90,000 for violation of the order from August, 1999, to February, 2001 (18 months at $5000 per month); (2) $765,000 for violation of the order from March, 2001, to June, 2005 (51 months at $15,000 per month); and (3) $1,080,000 for violation of the order from July, 2005, to January, 2010 (54 months at $20,000 per month). We note that the plaintiff’s proposed penalty was only a small fraction of the statutory maximum because General Statutes § 22a-438 allows for a penalty of up to $25,000 per day for continuous violations, and that the penalty as actually imposed by the court is an even smaller fraction of the statutory maximum.

       The defendant admitted at trial that it did not comply with the provisions of the order in question; thus, the only issue at trial concerned potential relief.

       At oral argument in this court, the defendant attempted to raise new arguments that the trial court improperly considered other factors related to the civil penalty. Because the defendant did not raise these issues in its brief and raised them for the first time at oral argument, we decline to address them. See Grimm v. Grimm, 276 Conn. 377, 393, 886 A.2d 391 (2005) (claims cannot be raised for first time at oral argument before reviewing court), cert. denied, 547 U.S. 1148, 126 S. Ct. 2296, 164 L. Ed. 2d 815 (2006).

       The order required, among other things, that the defendant hire a consultant to perform a comprehensive investigation to determine the potential impact of the conditions at the site on human health and the environment, both on site and off site, including, but not limited to, the existing and potential extent and degree of sod, groundwater and surface pollution.

       The Superior Court judgment was subsequently affirmed by our Supreme Court. See Cadlerock Properties Joint Venture, L.P. v. Commissioner of Environmental Protection, 253 Conn. 661, 757 A.2d 1 (2000), cert. denied, 531 U.S. 1148, 121 S. Ct. 1089, 148 L. Ed. 2d 963 (2001).

       General Statutes § 22a-438 (a) provides in relevant part: “In determining the amount of any penalty assessed under this subsection, the court may consider the nature, circumstances, extent and gravity of the violation, the person or municipality’s prior history of violations, the economic benefit resulting to the person or municipality from the violation, and such other factors deemed appropriate by the court. The court shall consider the status of a person or a municipality as a persistent violator. . . .”

       General Statutes § 22a-226 (a) provides in relevant part: “Any person who violates any provision of this chapter or any regulation, permit or order adopted or issued under this chapter, or any owner of land who knowingly permits such violations to occur on his land, shall be assessed a civil penalty not to exceed twenty-five thousand dollars, to be fixed by the court, for each offense. . . .”

       The defendant cites a recent case from this court, Rossman v. Morasco, 115 Conn. App. 234, 261, 974 A.2d 1, cert. denied, 293 Conn. 923, 980 A.2d 912 (2009), for the proposition that a court cannot award a judgment against a person who is not party to an action. Although this is true, the defendant mischaracterizes the nature of the court’s ruling in the present case because no penalty has been assessed against any person or entity other than the defendant. Thus, the case law the defendant cites to for this proposition is not pertinent.


source: Caselaw Access Project

author: BORDEN, J.

license: Public Domain

text:
    CADLEROCK PROPERTIES JOINT VENTURE, L.P. v. COMMISSIONER OF ENVIRONMENTAL PROTECTION
    (AC 32864)
    Beach, Alvord and Borden, Js.
    Argued September 14
    officially released November 15, 2011

      Michael G. Albano, for the appellant (plaintiff).

      Sharon M. Seligman, assistant attorney general, with whom were David H. Wrinn, assistant attorney general, and, on the brief, George Jepsen, attorney general, and Patricia A. Horgan and Kimberly P. Massicotte, assistant attorneys general, for the appellee (defendant).
   Opinion

BORDEN, J.

The plaintiff, Cadlerock Properties Joint Venture, L.P., appeals from the judgment of the trial court, after a court trial, in favor of the defendant, the commissioner of environmental protection, on the plaintiffs complaint, which was based on a claim of inverse condemnation. The plaintiff claims that, because certain portions of the plaintiffs property are not contaminated, the defendant’s final administrative pollution abatement order with respect to the property constitutes an inverse condemnation of the property. We affirm the judgment of the trial court.

The court found the following facts. The plaintiff acquired the property, which consists of 335 acres located in the towns of Willington and Ashford, in November, 1996, from an affiliated entity, Cadle Properties of Connecticut, Inc., which had, in turn, acquired the property via a deed in lieu of foreclosure from Ashford Development Company in connection with a loan owed to another affiliate company, namely, Cadle Company of Connecticut, Inc. On August 15, 1997, the defendant issued to the plaintiff the pollution abatement order involved in this case.

The order required the plaintiff to retain a qualified consultant to prepare certain documents and to implement or oversee actions required by the order. These actions consisted of the following: submission of a scope of study for the investigation of soil, groundwater and surface water pollution on or emanating from the site; investigation of the potential impact of the pollution on human health and environment, both on-site and off-site, including the existing and potential extent and degree of soil, groundwater and surface water pollution; investigation of the proposed location and depths of groundwater monitoring wells, and soil and surface water sampling and submission of a schedule for the investigation. In addition, the order required the plaintiff to remove solid waste from the site to a lawful solid waste facility, and to notify the defendant three days prior to that removal of the identity of that facility. Once the defendant had reviewed and approved the scope of study, the plaintiff was required to perform the investigation and other actions specified in the scope of study in accordance with the approved schedule, and to notify the defendant of the date and time of installation of the monitoring wells and of each soil and water sampling. Thirty days after completion of the investigation, the plaintiff was required to submit to the defendant for her review and approval a comprehensive, thorough report describing in detail the investigation performed, the existence and degree of potential and extent of soil, surface water and groundwater pollution on and emanating from the site. In addition, the report was to evaluate the alternatives for abating the pollution, describe the most expeditious schedule for each alternative, propose a preferred remedial alternative with supporting justification and offer a detailed program and schedule for performing that remedial alternative. Further, the report was to proffer a soil, surface water and groundwater monitoring program to determine the degree to which the approved remedial actions have been effective and a schedule for performing the groundwater monitoring program. Finally, the plaintiff was required to perform the approved remedial actions according to the schedule approved by the defendant, to certify completion of the approved actions to the defendant and to undertake additional remedial actions if the approved actions did not result in the prevention of and abatement of soil, surface water and groundwater pollution.

The plaintiff administratively appealed the issuance of the order, and in October, 1998, an administrative hearing officer affirmed the order. Pursuant to General Statutes § 22a-434, on December 28,1998, the defendant filed a certified copy of the order on the Ashford and Willington land records. The plaintiff thereupon appealed the order to the Superior Court, which dismissed the appeal in May, 1999. The plaintiff then appealed further, and in January, 2000, the Supreme Court affirmed the validity of the order. See Cadlerock Properties Joint Venture, L.P. v. Commissioner of Environmental Protection, 253 Conn. 661, 757 A.2d 1 (2000), cert. denied, 531 U.S. 1148, 121 S. Ct. 1089, 148 L. Ed. 2d 963 (2001).

The order applies to the entire 335 acre site. The site is not officially subdivided on the land records. It is, however, divided into twelve lots on the Ashford assessor’s map, namely, lots numbered 3, 6, 7, 8, 9, 10, 13, 14,19 and 27 in Ashford, and lots numbered 11 and 11a in Willington.

Meanwhile, in December, 1998, the plaintiff retained HRP Associates, Inc. (HRP), as a qualified environmental consultant to prepare the documents and oversee the actions required by the order. In March, 1999, HRP submitted its scope of study to the defendant, which the defendant disapproved in July, 1999. HRP notified the defendant that it intended to conduct additional soil and groundwater analysis and to submit a revised scope of study, but no such revised scope of study was ever submitted to the defendant. At some point, Daniel C. Cadle, acting for the plaintiff, wrote to the attorney general indicating that all problems had been identified and solved at the site. With respect to that letter, HRP wrote to Cadle that “HRP feels that it is our obligation to inform you of our concern that additional areas of contaminated soil may exist onsite [and that] it is HRP’s belief that the contaminated soil that may exist onsite has not been adequately identified, evaluated, quantified, excavated or staged in piles. Additional sub-surface investigation is needed to evaluate the presence of contamination onsite.” The plaintiff did not send this letter to the department. The department never received any Phase I, II or HI investigation reports from HRP.

The department most recently inspected the site in August, 2007, March, 2008, and September and October, 2009. In the latter two months, the department visited approximately fifty locations on the site and identified numerous areas of environmental concern across the site.

There are twelve unsigned draft reports prepared by HRP, identified as “draft Phase I” reports, along with a summary chart describing “recognized environmental conditions” on twelve lots in Ashford and Willington. None of these reports was submitted to the department in response to the order in question. These reports indicate that only a Phase I environmental investigation was conducted, but not a Phase II or III.

At trial, the plaintiff maintained that “[b]y every indication, lots 11a, 14 and 27 are free from contamination, impose no risk to the population or the environment,” and that the continued presence of the order on those lots prevented the plaintiff from using the site as it is entitled to do under the law. Consequently, the plaintiff maintained further, regarding those three lots, the order amounts to a “practical confiscation that can only be remedied by an order of th[e] [c]ourt requiring the [department] to amend the Order so as to exclude lots 11a, 14 and 27.” The trial court deemed it unnecessary to decide whether it should or could order the defendant to amend the order and exclude any lot proven to be uncontaminated because it found “insufficient proof that these three lots are uncontaminated.” Accordingly, the trial court rejected that particular claim of the plaintiff.

The plaintiffs sole claim on appeal is that because lots 11 A, 14 and 27 are not contaminated, the enforcement of the order with regard to those lots amounts to inverse condemnation and that the trial court improperly found to the contrary. We disagree.

The trial court’s finding that the plaintiff had not, as a factual matter, adduced sufficient proof that the three lots are uncontaminated must stand unless it is shown to be clearly erroneous. See Ravetto v. Triton Thalassic Technologies, Inc., 285 Conn. 716, 727, 941 A.2d 309 (2008). It is clear that there is ample evidence in the record supporting the court’s finding.

The trial court specifically credited the defendant’s principal witness on the subject of contamination, namely, William Warzecha, a hydrologist and supervising analyst of the department, who is an expert in the field of contamination and whose testimony was not rebutted. Warzecha testified that the three lots cannot be declared free of further investigation or contamination. He testified further that the area in question is a “highly suspect site” due to its history of dumping, that buried waste is not visible to the naked eye, and that lot 11A required a subservice investigation, including soil and groundwater sampling, due to its proximity to and use as access to lot 11, where wire was burned and rows of automobiles are buried. Warzecha also testified that, although he did not know of areas of environmental concern on lot number 27, there was a need for assurance that the lot was not polluted by installing groundwater monitoring wells. He further testified that, although lot number 14 was unlikely to contain areas of environmental concern that did not mean that groundwater on that lot was not impacted. The court also notes, as do we, that the plaintiff did not introduce any scientific testimony regarding the lack of pollution on any of the three lots in question and failed to provide evidence supporting a scientifically based determination that the remaining lots are free of soil, surface water or groundwater pollution.

The judgment is affirmed.

In this opinion the other judges concurred.

       We refer herein to the commissioner as the defendant, and to the department of environmental protection as the department, depending on the appropriate context.

       The trial court made extensive factual findings, some of which are not relevant to the sole legal issue presented by this appeal. In the interest of brevity, we focus only on those factual findings that are relevant to that issue.

       The defendant raises numerous arguments, both factual and legal, in response to the plaintiffs appeal. Among these are that (1) the trial court properly found that the plaintiff had failed to prove that lots 11A, 14 and 27 are free from contamination; (2) the trial court properly determined that the plaintiff had failed to establish the finality of its claimed deprivation of property; (3) the order constitutes a valid exercise of the police power; (4) the plaintiff failed to show loss of beneficial use of its property as a result of the order; and (5) the plaintiffs request for relief is improper in the context of an inverse condemnation claim. Because we agree with the defendant’s first such argument, we need not address the others.


author: ALVORD, J.

text:
    STATE OF CONNECTICUT v. KEITH ERIC ANDERSEN
    (AC 32076)
    Gruendel, Alvord and Bishop, Js.

      Argued September 15
    officially released November 15, 2011

      Deborah G. Stevenson, special public defender, for the appellant (defendant).

      Kathryn Ward Bare, assistant state’s attorney, with whom, on the brief, were Michael L. Regan, state’s attorney, and Theresa Ferryman and Sarah E. Steere, senior assistant state’s attorneys, for the appellee (state).
   Opinion

ALVORD, J.

The defendant, Keith Eric Andersen, appeals from the judgment of conviction, rendered after a jury trial, of one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (1), one count of risk of injury to a child in violation of § 53-21 (a) (2), one count of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A) and one count of burglary in the second degree in violation of General Statutes (Rev. to 2007) § 53a-102 (a) (l). On appeal, the defendant claims that the trial court improperly (1) allowed evidence of prior uncharged misconduct, (2) restricted his cross-examination of a state’s witness and (3) denied his motions for a judgment of acquittal. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In July, 2007, C was living with the victim, K, his nine year old daughter, in a mobile home in Stonington. The mobile home was owned by S, C’s estranged wife and the victim’s stepmother. S was living at that time with a friend in Waterford. During the evening of July 2, 2007, the defendant stopped by the mobile home to visit C. The defendant had been a friend of C and S for more than a year. K played outside while the defendant and C talked and drank beer.

Shortly after the defendant’s arrival, N, the eighteen year old daughter of S, and her boyfriend also stopped by the mobile home to visit C. They had driven from New Fairfield and planned on staying in the area for the night. Because the mobile home was small and they wanted privacy, N and her boyfriend indicated that they would like to stay at a local hotel but that they were unable to rent a room because of their ages. The defendant offered them the use of his home, saying that he would not be staying there that evening. When they indicated that they would prefer a hotel room, the defendant offered to help them.

After they had visited for a few hours, C, who was employed by Foxwoods Casino, told the group that he needed to take a nap before he went to work his scheduled third shift. The defendant had his own car and left at that time. N and her boyfriend drove away in their own vehicle and followed the defendant to a hotel in Mystic. The defendant went into the hotel lobby and secured a room in his name. He then exited the hotel, gave the room key to N and her boyfriend and departed.

C left for work at approximately 11:15 p.m. Before he left, he checked on K, who was asleep, and locked both doors of the mobile home. K stayed in the mobile home alone while C was at work. She slept in a bunk bed in her own bedroom. That night she was wearing sport shorts with an elastic waistband and a T-shirt. At approximately 1 a.m., K was awakened by the defendant, who put his hand under her shorts and touched her buttocks. He snapped the elastic at her waist several times “trying to look into [her] underwear.” She kept turning and moving in the bed to avoid him and then confronted him by asking why he was there. The defendant said that C had requested that he stop by to check on her. K did not believe him and told the defendant to leave, at which point he exited the mobile home. K telephoned C at work to tell him what had happened, and C returned home. When he arrived at the mobile home, he noticed that the back door was ajar and that the screen had been ripped.

C contacted the Stonington police department to report the incident. After an investigation, the defendant was arrested and pleaded not guilty to the charged offenses. Following a three day trial, the court rendered a judgment of conviction in accordance with the jury’s verdict of guilty on all counts of the amended substitute information. The defendant was sentenced to a total effective term of thirty years incarceration, execution suspended after fifteen years, followed by thirty-five years of probation with special conditions. This appeal followed.

I

The defendant’s first claim is that his federal and state constitutional rights were violated when the court admitted evidence of his prior uncharged misconduct. More specifically, the defendant argues that the court improperly permitted the testimony of K, C and S with respect to a previous incident in which the defendant had touched K inappropriately. The defendant claims that the court did not determine whether the prior misconduct was remote in time or similar to the charged misconduct. He further claims that the court failed to conduct the requisite balancing test to determine whether the probative value outweighed the prejudicial effect of the evidence and that the court failed to give a proper cautionary instruction to the jury regarding the proper use of the uncharged misconduct evidence. We disagree.

The following additional facts and procedural history are relevant to the defendant’s claim. The defendant filed a pretrial motion in limine to preclude the state from introducing evidence of his prior criminal convictions and allegations of prior misconduct with respect to K. The state filed a response to the defendant’s motion, indicating that it would present evidence of the defendant’s prior felony convictions only if he elected to testify at trial. With respect to the uncharged misconduct evidence involving K, the state objected to the defendant’s motion and indicated that it intended to offer testimony regarding an incident it believed to be relevant to his intent and motive in committing the charged offenses. The state included a summary of the anticipated testimony in its attached memorandum of law.

The court held a hearing on November 23, 2009, to consider the motion. According to the state, the incident of uncharged misconduct took place within eighteen months of the charged offenses and occurred when the defendant and K were in the backseat of a car being driven by C. S, who was not separated from C at that time, was in the front passenger seat. The state indicated that K would testify that the defendant kept trying to touch her buttocks, that she told him to stop and that she asked C and S to tell the defendant to stop trying to touch her buttocks.

Following argument by counsel, the court denied the defendant’s motion to preclude the evidence. Citing Connecticut case law, the court stated that it was permissible to introduce evidence of a defendant’s prior sexual misconduct with the same complaining witness to show motive and intent and that the probative value of such evidence outweighed its prejudicial effect. The court further stated that such evidence is commonly admitted to show a lustful inclination toward a specific victim and that a particular sexual interest in a victim is relevant to the motivation of the defendant to commit the charged offense. Additionally, the court noted that the alleged prior misconduct was sufficiently similar to the charged misconduct and had happened within months of the charged offenses. The court concluded: “With a limiting instruction, it is the feeling of the court [that] the evidence is highly probative and that the probative value of such evidence outweighs any claimed prejudicial effect on the defendant.”

At trial, K testified that the defendant had touched her buttocks prior to the July 3, 2007 incident. She said she was in the backseat of C’s car when it happened, that she told C and S that the defendant was touching her buttocks and that they told him to stop. The court then gave the jury a limiting instruction with respect to the uncharged misconduct evidence. C likewise testified as to the prior incident in his car. He recalled that the defendant and K were “poking” each other in the backseat, and K kept asking the defendant to stop. He told them both to stop, although he did not know exactly what was happening at the time. At the conclusion of C’s testimony, the court gave the same limiting instruction to the jury with respect to the use of the prior uncharged misconduct evidence. The state called S as its next witness, and she additionally testified as to the prior incident in the car. She stated that the defendant and K were both in the backseat, that K kept telling the defendant to “stop it” and that K said the defendant would not stop touching her leg. S testified that she was not paying much attention to what was going on but that she did tell both of them to “cut it out . . . .” The court did not give a limiting instruction with respect to S’s testimony. The court did, however, give a limiting instruction as to the prior uncharged misconduct in its final instructions to the jury.

“We review the trial court’s decision to admit evidence, if premised on a correct view of the law . . . for an abuse of 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. ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.” (Citations omitted; internal quotation marks omitted.) State v. Orr, 291 Conn. 642, 666-67, 969 A.2d 750 (2009).

“[A]s a general rule, evidence of prior misconduct is inadmissible to prove that a defendant is guilty of the crime of which he is accused. . . . Nor can such evidence be used to suggest that the defendant has a bad character or a propensity for criminal behavior. . . . [H]owever, evidence of prior misconduct may be admitted when it is offered for a purpose other than to establish the defendant’s bad character or criminal propensity. Among other things, prior misconduct evidence may be admissible to prove intent, identity, motive, malice or a common plan or scheme.” (Citations omitted; internal quotation marks omitted.) State v. Jacobson, 283 Conn. 618, 630, 930 A.2d 628 (2007).

“[P]ublic policy considerations militate in favor of recognizing a limited exception to the prohibition on the admission of uncharged misconduct evidence in sex crime cases to prove that the defendant had a propensity to engage in aberrant and compulsive criminal sexual behavior.” (Emphasis in original.) State v. DeJesus, 288 Conn. 418, 470, 953 A.2d 45 (2008). That approach, however, “does not vest trial courts with carte blanche to allow the state to introduce any prior sexual misconduct evidence against an accused in sex crime cases. . . . First, evidence of uncharged sexual misconduct is admissible only if it is relevant to prove that the defendant had a propensity or a tendency to engage in the type of aberrant and compulsive criminal sexual behavior with which he or she is charged. . . . [E]vidence of uncharged misconduct is relevant to prove that the defendant had a propensity or a tendency to engage in the crime charged only if it is: (1) . . . not too remote in time; (2) . . . similar to the offense charged; and (3) . . . committed upon persons similar to the prosecuting witness. . . .

“Second, evidence of uncharged misconduct is admissible only if its probative value outweighs the prejudicial effect that invariably flows from its admission. ... In balancing the probative value of such evidence against its prejudicial effect, however, trial courts must be mindful of the purpose for which the evidence is to be admitted, namely, to permit the jury to consider a defendant’s prior bad acts in the area of sexual abuse or child molestation for the purpose of showing propensity. . . .

“Lastly, to minimize the risk of undue prejudice to the defendant, the admission of evidence of uncharged sexual misconduct under the limited propensity exception adopted herein must be accompanied by an appropriate cautionary instruction to the jury.” (Citations omitted; internal quotation marks omitted.) Id., 472-74.

With these principles in mind, we review the court’s ruling allowing the introduction of the prior misconduct evidence. The court determined that the proposed evidence was relevant and probative because the defendant’s conduct in the car, i.e., repeatedly trying to touch K’s buttocks, was sufficiently similar to the charged offenses, i.e., putting his hand under her shorts, touching her buttocks and trying to look in her underwear. Additionally, the court determined that the claimed prior misconduct was proximate in time to the incident leading to the charged offenses. Because the prior misconduct involved the same victim, there was no issue as to whether it was committed upon a person similar to the prosecuting witness. See id., 473.

The court’s conclusion that the probative value of the prior misconduct evidence outweighed its prejudicial value is supported by the record. As the court indicated, evidence of prior sexual misconduct with the same victim is commonly admitted to show “a lustful inclination toward the victim.” State v. James, 211 Conn. 555, 578, 560 A.2d 426 (1989). It is apparent from the court’s ruling that it considered all of the relevant factors set forth in DeJesus and performed the requisite balancing test. The court also gave the jury the mandatory cautionary instruction as to the limited use of the prior sexual misconduct evidence, in order “to minimize the risk of undue prejudice to the defendant . . . .” State v. DeJesus, supra, 288 Conn. 474. Accordingly, we cannot conclude that the court abused its broad discretion in admitting the testimony of K, C and S with respect to the prior uncharged sexual misconduct of the defendant.

II

The defendant’s next claim is that the court impermissibly restricted his cross-examination of a state’s witness, thereby precluding the elicitation of relevant and material evidence on the issue of the defendant’s intoxication. The defendant argues that he was so intoxicated on the night of the incident that he could not have formed the specific intent necessary for the commission of the crimes of sexual assault in the fourth degree and burglary in the second degree. He claims that the court would not permit him to question the witness with respect to the issue of blood alcohol levels and their effects on the human body, which effectively deprived him of his constitutional right to present a defense. We are not persuaded.

The state called Detective Joseph Coco of the Stonington police department to testify at trial concerning his questioning of the defendant on July 6, 2007, which was three days after the incident with K. Coco stated that he spoke with the defendant at his home in Noank after having spoken with K and C. He testified that the defendant was aware of the reason for the investigation but that “his memory was not very clear as to what happened.” According to Coco, the defendant said that he had driven to Massachusetts during the night and slept at a construction site where he previously had worked. When the defendant woke up in the morning, he drove back home. The defendant told Coco that he knew he had visited C earlier in the evening and that afterward he had been at the Polish American Club in New London, where he consumed additional alcoholic drinks, but that he could remember nothing from the time that he had left the club until he had awakened at the construction site in Massachusetts the next morning.

During cross-examination, defense counsel asked Coco whether he and the defendant specifically discussed the quantity of alcohol that the defendant had consumed during the night in question. Coco responded in the negative. Coco was then asked whether he had any training with respect to the effects of alcohol on a person, and he said that he did. Defense counsel questioned Coco as to the blood alcohol level necessary for a person to experience a blackout, and Coco testified that it would be “higher than lower . . . .” After the next question, which pertained to the statute that prohibits driving while intoxicated, the state objected on the ground of relevance. The jury was excused, and defense counsel stated: “Your Honor, one of the defenses we have is intoxication. This witness has experience, an understanding as to the influence alcohol has on the body, and it certainly would be relevant to our defense.”

The prosecutor responded that Coco had not observed the defendant during the night of the incident, did not know the defendant’s capacity to consume and to digest alcohol and was not qualified to give an opinion. The court then permitted defense counsel to voir dire Coco outside of the presence of the jury in an attempt to lay a foundation for that line of questioning. Coco testified that he did not have an understanding as to the range of blood alcohol levels that would produce a blackout. He stated that he did know that a blood alcohol level of 0.5 could be indicative of a medical emergency, that a level of 0.4 most likely would mean that a person would be unconscious and that a level of 0.3 would have a pronounced negative effect on a person’s ability to function physically.

The prosecutor then argued that the defendant’s blood alcohol level could not be established because no blood alcohol evidence had been submitted in the case. The court asked defense counsel whether he had any evidence as to the effect a certain blood alcohol level would have on the person of the defendant as opposed to an average person; defense counsel responded that he did not. Defense counsel further stated that he had not retained a toxicologist and that he had no evidence as to the defendant’s blood alcohol level on the night of the incident.

The court ruled that the proposed questions would confuse the jury. In precluding further cross-examination on the issue, the court stated: “I think any probative value is outweighed by the danger of confusion of the issues, and misleading the jury, and undue delay — [a] waste of time, needless presentation of evidence, and this witness doesn’t have the requisite foundation to offer any such opinion.” At that point, the jury returned to the courtroom, and defense counsel indicated that he had no further questions for Coco.

“It is well established that [t]he federal constitution require [s] that criminal defendants be afforded a meaningful opportunity to present a complete defense. . . . The sixth amendment . . . [guarantees] the right to offer the testimony of witnesses, and to compel their attendance, if necessary, [and] is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so that it may decide where the truth lies. . . . When defense evidence is excluded, such exclusion may give rise to a claim of denial of the right to present a defense. ... A defendant is, however, bound by the rules of evidence in presenting a defense. . . . Although exclusionary rules of evidence cannot be applied mechanistically to deprive a defendant of his rights, the constitution does not require that a defendant be permitted to present every piece of evidence he wishes. ... If the proffered evidence is not relevant, the defendant’s right to confrontation is not affected, and the evidence was properly excluded. ” (Internal quotation marks omitted.) State v. Hedge, 297 Conn. 621, 634, 1 A.3d 1051 (2010).

In the present case, the defendant was attempting to elicit testimony from the state’s witness to prove his claim that he was too intoxicated to have been able to form the specific intent necessary for the commission of the crimes of sexual assault in the fourth degree and burglary in the second degree. The court permitted some questioning as to Coco’s background and training relative to the effects of alcohol consumption on the human body. After the state’s objection on the ground of relevancy, the court permitted the defendant to question Coco outside of the jury’s presence to lay a foundation as to his qualifications to opine as to the defendant’s level of intoxication. The record supports the court’s determination that the proffered line of questioning would not have elicited relevant evidence because defense counsel confirmed that he had no evidence to present with respect to the defendant’s blood alcohol level on the night of the incident and no evidence to present with respect to the quantity of alcohol that would cause the defendant to experience a blackout. The defendant did not have a toxicologist or other expert to opine as to the defendant’s state of intoxication, and Coco did not possess the requisite expertise because he testified that he did not know at what blood alcohol level a blackout would occur.

Accordingly, we conclude that the trial court properly precluded further cross-examination of Coco with respect to the issue of blood alcohol levels and blackouts. The defendant’s constitutional claim has no merit, and the court did not abuse its discretion in limiting the cross-examination of Coco on that matter.

Ill

The defendant’s final claim is that the court improperly denied his motions for acquittal. At the conclusion of the state’s case-in-chief and after all the evidence had been presented by the parties, the defendant moved for a judgment of acquittal. He claimed that (1) there was insufficient evidence to prove that he touched K’s buttocks, thereby precluding a conviction of risk of injury to a child in violation of § 53-21 (a) (2) and sexual assault in the fourth degree and (2) the state failed to prove that he had the requisite mental state to commit the crimes of sexual assault in the fourth degree and burglary in the second degree because of his high level of intoxication at the time of the incident.

“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 jury 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 for the jury to conclude that a basic fact or an inferred fact is true, the jury 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.” (Internal quotation marks omitted.) State v. Lopez, 280 Conn. 779, 808, 911 A.2d 1099 (2007).

A

The defendant claims that the “ ‘cumulative force of the evidence’ ” did not establish beyond a reasonable doubt that the defendant touched the intimate parts or had sexual contact with K, which is a key element in the crimes of risk of injury to a child in violation of § 53-21 (a) (2) and sexual assault in the fourth degree in violation of § 53a-73a (a) (1) (A). He argues that multiple witnesses, including K, testified that the defendant attempted to touch her or was trying to touch her, not that she had actually been touched. The defendant claims that the state failed to prove a touching or sexual contact with K’s intimate parts beyond a reasonable doubt because “[h]ere the evidence was overwhelming in showing an ‘attempted touching,’ but minimal in showing an actual touching.”

At trial, K testified during direct examination that she was awakened in the middle of the night by the defendant, whose hand was under her shorts. She testified that she could feel his hand on her skin. During cross-examination, defense counsel asked Kthe following question: “I guess my question to you is, as you’re sitting here today more than two years after the date, are you sure that [the defendant] touched your butt over your shorts?” Kresponded: “Yes.” Defense counsel next asked if she recalled telling a police officer and telling C that the defendant had touched her buttocks over her shorts, and she again responded in the affirmative. Further, Coco testified that K told him during his investigation that the defendant had touched her buttocks. He included that information in K’s written statement and reviewed the statement with her before she signed it.

“[I]t is well settled that [w]hether [a witness’] testimony [is] believable [is] a question solely for the jury. It is . . . the absolute right and responsibility of the jury to weigh conflicting evidence and to determine the credibility of the witnesses. . . . [T]he [jury] can . . . decide what — all, none or some — of a witness’ testimony to accept or reject. . . . [Questions of whether to believe or to disbelieve a competent witness are beyond our review .... In addition, [e]vidence is not insufficient merely because it is conflicting or inconsistent. ... A trier of fact is free to reject testimony even if it is uncontradicted . . . and is equally free to reject part of the testimony of a witness even if other parts have been found credible. . . . [A]n appellate court does not retry the case or evaluate the credibility of the witnesses.” (Citations omitted; internal quotation marks omitted.) State v. Betancourt, 106 Conn. App. 627, 632 n.1, 942 A.2d 557, cert. denied, 287 Conn. 910, 950 A.2d 1285 (2008). Because the jury was free to credit all or part of K’s testimony, and we do not second-guess the jury’s credibility determinations, the defendant’s claim fails.

B

The defendant also claims that the state failed to prove that he had the requisite specific intent to commit the crimes of sexual assault in the fourth degree and burglary in the second degree because of his intoxicated condition at the time of the incident. He argues that the court should have granted his motion for acquittal because he had introduced evidence that he was intoxicated, the state did not refute the fact of his intoxication, and, therefore, the state failed to prove that he possessed the specific intent to commit those crimes.

The specific intent to subject a person under thirteen years of age to sexual contact, when the actor is more than two years older than the victim, is an essential element of the crime of sexual assault in the fourth degree. General Statutes § 53a-73a (a) (1) (A). The specific intent to commit a crime when a person enters a dwelling unlawfully, when another individual is present in that dwelling, is an essential element of the crime of burglary in the second degree. General Statutes § 53a-102 (a). The defendant’s theory of defense was that he was too intoxicated to be able to form the specific intent to commit those crimes. General Statutes § 53a-7 provides in relevant part: “Intoxication shall not be a defense to a criminal charge, but in any prosecution for an offense evidence of intoxication of the defendant may be offered by the defendant whenever it is relevant to negate an element of the crime charged .... As used in this section, ‘intoxication’ means a substantial disturbance of mental or physical capacities resulting from the introduction of substances into the body.”

The defendant claims that the following evidence submitted at trial indicated that he was intoxicated at the time of the incident. K testified that C and the defendant had been drinking that night and that she smelled beer when the defendant later appeared at the mobile home. N testified that she thought the defendant “was drunk” while he was at the mobile home because she could smell alcohol. S testified that she was working as a bartender at the Polish American Club on the night in question and that the defendant walked in at approximately 11:30 p.m. According to S, he appeared to be intoxicated when he arrived, and he was served three or four alcoholic drinks at the club before he left the premises sometime between 12:45 a.m. and 1:15 a.m. Detective John Fiore of the Stonington police department testified that he interviewed C a few days after the incident, and C told him that he and the defendant had consumed several beers between the hours of 7 p.m. and 8 p.m. Coco testified that he questioned the defendant during the investigation, and the defendant claimed that he had suffered a blackout from the time he left the Polish American Club until he woke up in Massachusetts.

It was the state’s burden to prove, beyond a reasonable doubt, that the defendant had the requisite specific intent to commit the charged offenses of sexual assault in the fourth degree and burglary in the second degree despite evidence of his intoxication at the time of the incident. See State v. Faria, 254 Conn. 613, 636-37, 758 A.2d 348 (2000). Although a criminal defendant’s intoxication is relevant to the issue of whether the defendant had the capacity to form the specific intent necessary for the commission of the crime, “it is not dispositive of the issue. It is for the jury to decide, after weighing all the evidence adduced at trial, whether a criminal defendant’s intoxication rendered him incapable of forming the intent required to commit the crime with which he is charged.” State v. Vinal, 198 Conn. 644, 658-59, 504 A.2d 1364 (1986).

In the present case, the defendant’s argument relies on the assumption that the jury fully accepted all of the evidence that supported the defendant’s claim of debilitating intoxication. The jury, however, was free to accept or reject any of that testimony, including the defendant’s assertion that he had no recollection of events after he left the Polish American Club. Other testimony, which the jury reasonably could have believed, demonstrated that the defendant did possess the requisite specific intent and that he had planned to molest K. The incident that occurred in the backseat of C’s car months before the defendant committed the charged offenses evidenced the defendant’s motive and intent to sexually assault K. Further, he knew C was working the third shift at Foxwoods and would not be at the mobile home later that evening. He also made certain that N and her boyfriend would not stay overnight at the mobile home by renting a hotel room for them in Mystic. The defendant even checked on the whereabouts of S, just in case she might have planned on stopping by to see K. Although he never had visited S at the Polish American Club before the night of the incident, he stopped in that evening to determine whether S was working. Additionally, the defendant was mentally and physically capable of breaking through the screen and opening the locked door in order to reach K. When K demanded to know why he was there, he had the presence of mind to say that C had asked him to check on her. Finally, the defendant was able to drive the distance to Massachusetts after leaving the Polish American Club and the mobile home that evening.

In weighing all of the evidence, the jury reasonably could have concluded that the state proved beyond a reasonable doubt that the defendant possessed the specific intent to commit the crimes of sexual assault in the fourth degree and burglary in the second degree. Viewing the evidence in the light most favorable to sustaining the jury’s verdict, we find no basis for disturbing its conclusion. Accordingly, the trial court properly denied the defendant’s motions for a judgment of acquittal.

The judgment is affirmed.

In this opinion the other judges concurred.

       The incident leading to the charges against the defendant occurred on July 3, 2007. The legislature amended § 53a-102 during a special session in January, 2008; see Public Acts, Spec. Sess., January, 2008, No. 08-1, § 3; which became effective on March 1, 2008. The amendment deleted former subdivision (1) of subsection (a), which defined burglary in the second degree as entering or remaining unlawfully in a dwelling at night with the intent to commit a crime therein. That specific conduct was reclassified by the same public act; Spec. Sess. P.A. 08-1, § 2; as burglary in the first degree under General Statutes § 53a-101 (a) (3).
      Burglary in the second degree is now defined as follows: “A person is guilty of burglary in the second degree when such person enters or remains unlawfully in a dwelling, while a person other than a participant in the crime is actually present in such dwelling, with intent to commit a crime therein.” General Statutes § 53a-102 (a).

       In accordance with our policy of protecting the privacy interests of the victims of sexual assault and 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.

       During his testimony at trial, C confirmed that he had not asked the defendant to baby-sit K or to check on her that evening.

       The defendant states that his claim encompasses both federal and state constitutional violations. Because he has not briefed a state claim separately, we consider only a claim of a federal constitutional violation. See State v. Mulero, 91 Conn. App. 509, 514 n.3, 881 A.2d 1039 (2005), cert. denied, 277 Conn. 912, 895 A.2d 792, cert. denied, 549 U.S. 862, 127 S. Ct. 149, 166 L. Ed. 2d 108 (2006).

       The court’s limiting instruction was as follows: “The state has offered evidence of other acts of misconduct of the defendant. This is not being admitted to prove the bad character of the defendant or the defendant’s tendency to commit criminal acts. Such evidence is being admitted solely to show or establish the defendant’s intent or the motive for the commission of the crimes alleged; you may not consider such evidence.
      “This is just the evidence to have occurred in the car. You may not consider such evidence as establishing a predisposition on the part of the defendant to commit any of the crimes charged or demonstrate a criminal propensity. You may consider such evidence if you believe it and further find that it logically, rationally and conclusively supports the issues for which it is being offered by the state, but only as it may bear on the issue of the defendant’s intent or motive.
      “On the other hand, if you do not believe such evidence or, even if you do, if you find it does not logically, rationally and conclusively support the issues for which it is being offered by the state, mainly the defendant’s intent or motive, then you may not consider that testimony for any purpose.
      “You may not consider evidence of other misconduct of the defendant for any purpose other than the ones that I just told you because it may predispose your mind uncritically to believe that the defendant may be guilty of the offense here charged merely because of the alleged other misconduct.
      “For this reason, you may consider this evidence only on the issues of the defendant’s intent or motive, and for no other purpose.”

       The state’s representations as to the proposed evidence were borne out at trial by the testimony of K, C and S.

       “[Bjecause of the unusually aberrant and pathological nature of the crime of child molestation, prior acts of similar misconduct, as opposed to other types of misconduct, are deemed to be highly probative because they tend to establish a necessary motive or explanation for an otherwise inexplicably horrible crime . . . .” State v. DeJesus, supra, 288 Conn. 469.

       In order to conclude that the trial court performed the necessary balancing test, “a reviewing court must be able to infer from the entire record that the trial court considered the prejudicial effect of the evidence against its probative nature before making a ruling.” State v. Nunes, 260 Conn. 649, 690, 800 A.2d 1160 (2002).

       The defendant claims that the court gave the limiting instruction only once, after K’s testimony. The record reflects, however, that the court gave a limiting instruction after C’s testimony and in its final instructions to the jury.
      The defendant also claims that the court should have given the cautionary instruction prior to the testimony of the witnesses rather than after that testimony. See State v. DeJesus, supra, 288 Conn. 477. The defendant, however, never challenged the timing of the cautionary instruction at trial, nor has he indicated how he was harmed by the instruction being given after, rather than before, the witnesses’ testimony.

       Even though State v. DeJesus, supra, 288 Conn. 418, was decided before the trial in this case, it appears that the trial court relied on language from earlier case law in determining whether the prior uncharged sexual misconduct evidence was admissible. Although DeJesus made it clear that such evidence, under appropriate circumstances, may be admitted to establish that the defendant had a tendency or propensity to engage in “aberrant and compulsive criminal sexual behavior;” id., 476; the court in this case specifically limited the use of the evidence to establish the defendant’s motive or intent for the commission of the charged offenses. In fact, the court specifically charged the jury that it could not use the evidence to establish the defendant’s propensity to engage in sexual misconduct.
      The defendant claims that the court’s failure “to utilize the proper standard of review” deprived him of a fair trial. The defendant fails to indicate, however, how the court’s instruction that such evidence could be used only to establish motive and intent rather than for the broader purpose of establishing a propensity to engage in aberrant and compulsive sexual behavior has harmed him in any way. The defendant simply states that the “court . . . confused the jury.” The defendant did not demonstrate, and we cannot conclude, that the court’s failure to allow the use of the prior uncharged sexual misconduct evidence to demonstrate his propensity to commit the charged offenses confused the jury or was harmful to the defendant.

       Although the defendant claims a violation of his federal and state constitutional rights, we consider only a claim of a federal constitutional violation. See footnote 4 of this opinion.

       General Statutes § 53-21 (a) provides in relevant part: “Any person who ... (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years ... in a sexual and indecent manner likely to impair the health or morals of such child . . . shall be guilty of ... a class B felony for a violation of subdivision (2) of this subsection, except that, if the violation is of subdivision (2) of this subsection and the victim of the offense is under thirteen years of age, such person shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended or reduced by the court.” General Statutes § 53a-65 (8) defines “[i]ntimate parts” as “the genital area . . . groin, anus . . . inner thighs, buttocks or breasts.”

       General Statutes § 53a-73a (a) provides in relevant part: “A person is guilty of sexual assault in the fourth degree when: (1) Such person intentionally subjects another person to sexual contact who is (A) under thirteen years of age and the actor is more than two years older than such other person . . . .”
      General Statutes § 53a-65 (3) defines “[sjexual contact” in relevant part as “any contact with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person . . . .”


author: LAVINE, J.

text:
    JERMAINE D. DEAS v. ENRIQUE C. DIAZ ET AL.
    (AC 33030)
    DiPenttma, C. J., and Gruendel and Lavine, Js.

      Argued September 23
    officially released November 15, 2011

      Kevin W. Smith, for the appellant (defendant Transportation General, Inc.).

      John W. Mills, for the appellee (plaintiff).
   Opinion

LAVINE, J.

This appeal arises out of an action brought by the plaintiff, Jermaine D. Deas, to recover damages against Enrique C. Diaz, Valdermar Hernandez and the defendant Transportation General, Inc., doing business as Metro Taxi, in connection with an automobile accident. See Deas v. Diaz, 121 Conn. App. 826, 828-29, 998 A.2d 200, cert. denied, 298 Conn. 905, 3 A.3d 69 (2010). The defendant appeals from the judgment of the trial court granting the plaintiffs postjudgment motion to reallocate damages, which originally were assessed against Diaz and Hernandez, to the defendant, pursuant to General Statutes § 52-572h (g) (1). On appeal, the defendant claims that the court erroneously concluded that the plaintiff satisfied the requirement of § 52-572h (g) (1) that the plaintiff make “good faith efforts ... to collect from a liable defendant” before obtaining a reallocation of damages against another defendant. We affirm the judgment of the trial court.

Section 52-572h (g) (1) provides: “Upon motion by the claimant to open the judgment filed, after good faith efforts by the claimant to collect from a liable defendant, not later than one year after judgment becomes final through lapse of time or through exhaustion of appeal, whichever occurs later, the court shall determine whether all or part of a defendant’s proportionate share of the recoverable economic damages and recoverable noneconomic damages is uncollectible from that party, and shall reallocate such uncollectible amount among the other defendants in accordance with the provisions of this subsection.” (Emphasis added.)

The following facts and procedural history are relevant to the defendant’s appeal. On March 19, 2010, the plaintiff timely filed a motion to reallocate damages pursuant to § 52-572h (g) (1). The plaintiff alleged that he had attempted to locate the other liable defendants, Diaz and Hernandez, for more than one year but was unable to do so. The plaintiff claimed that he was entitled to have a portion of the uncollectible damages that were assessed against Diaz and Hernandez reallocated to the defendant.

In support of his motion, the plaintiff provided an affidavit from the private investigator whom he had retained to locate Diaz and Hernandez. The affidavit detailed the investigator’s efforts, which included utilizing two “subscriber-only people-search databases” commonly used by law enforcement, contacting the state department of motor vehicles, searching the department of correction online database, visiting the last known residence of Diaz and Hernandez, and meeting with the rental agent for that apartment. The investigation revealed that the apartment building “seemed to be a ‘revolving door of immigrants from everywhere,’ ” according to a postal delivery person, and that the apartment rental application was in “ ‘deep storage’,” making it impractical to search for, according to the rental agent. Additionally, one of the subscriber only databases uncovered an out-of-service cellular telephone number for Hernandez. The investigator concluded that Diaz and Hernandez were not “current or recent Connecticut residents and that a nationwide search, within reasonable professional efforts, would be futile.”

The defendant did not dispute the facts underlying the affidavit but argued that the plaintiff nonetheless failed to take “reasonable steps to locate these individuals ... .” Specifically, the defendant argued that the plaintiff (1) did not contact the Pennsylvania motor vehicles department, despite the statement in the police report that the vehicle driven by Diaz was registered in Pennsylvania; (2) did not contact the cellular telephone company to attempt to obtain Hernandez’ social security number; and (3) made insufficient efforts to obtain the rental application. After the plaintiff contested the feasibility of the defendant’s suggestions, the court granted his motion to reallocate damages.

As a preliminary matter, we must determine the appropriate standard of review for the defendant’s claim. The defendant argues that our review of the trial court’s evaluation of whether the plaintiff made “good faith efforts” involves statutory construction and is therefore subject to plenary review. The plaintiff, however, argues that “what constitutes a good faith effort, much like what constitutes ‘reasonable efforts’ under other Connecticut statutes, is inherently a fact based inquiry” subject to the clearly erroneous standard of review.

“[I]n order to determine the appropriate standard of review for the defendant’s claim in the present case, we first must ascertain whether the defendant is truly challenging the trial court’s interpretation of the pertinent law, in which case our review is plenary ... or whether [the defendant] is actually disputing the court’s factual findings, in which case we review those findings for clear error.” (Citation omitted.) State v. Bonner, 290 Conn. 468, 481, 964 A.2d 73 (2009). Whether the defendant made “good faith efforts” is a subjective, factual determination. See Phillipe v. Thomas, 3 Conn. App. 471, 474-75, 489 A.2d 1056 (1985). As such, “[t]he trier of fact, using the evidence at its disposal and considering the unique circumstances of each case, is in the best position to make [this] individualized determination . . . .” Ayantola v. Board of Trustees of Technical Colleges, 116 Conn. App. 531, 539, 976 A.2d 784 (2009); id., 538 (holding that “the question of causation in a prima facie case of retaliation brought under [General Statutes § 46a-60] is factual in nature and thereby subject to the clearly erroneous standard of review”).

The defendant does not argue that the trial court improperly interpreted the statute; rather, the defendant challenges the court’s factual determination that the plaintiff made “good faith efforts” to locate Diaz and Hernandez. We therefore review the court’s finding under the clearly erroneous standard of review. See In re Melody L., 290 Conn. 131, 144-45, 962 A.2d 81 (2009) (review of trial court’s determination of whether department of children and families made “reasonable efforts” to reunify child with parent under § 17a-112 [j] [1] is for clear error); Harley v. Indian Spring Land Co., 123 Conn. App. 800, 837, 3 A.3d 992 (2010) (“[w]hether a party has acted in bad faith is a question of fact, subject to the clearly erroneous standard of review”).

We next consider the meaning of the phrase “good faith efforts,” a matter of statutory construction over which our review is plenary. See Pagett v. Westport Precision, Inc., 82 Conn. App. 526, 528, 845 A.2d 455 (2004). “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. . . . [W]e are mindful of the legislature’s directive that, [i]n the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly. General Statutes § 1-1 (a). . . . State v. Dupigney, 295 Conn. 50, 58-59, 988 A.2d 851 (2010); see also General Statutes § l-2z. Words with a fixed legal or judicially settled meaning must be presumed to have been used in that sense. ... In ascertaining legislative intent [r]ather than using terms in their everyday sense, [t]he law uses familiar legal expressions in their familiar legal sense.” (Internal quotation marks omitted.) State v. Sunrise Herbal Remedies, Inc., 296 Conn. 556, 567-68, 2 A.3d 843 (2010).

Although § 52-572h does not define “good faith efforts,” because “good faith” has a common legal meaning, we conclude that the phrase is clear and unambiguous. In Phillipe v. Thomas, supra, 3 Conn. App. 474-76, this court differentiated between a “good faith efforts” standard and a “reasonable efforts” standard in the context of a real estate contract that contained a mortgage contingency clause requiring the plaintiff to pursue a mortgage application with diligence. The court explained that “[t]he difference between the good faith and reasonable efforts standards is the difference between a subjective and an objective standard. Good faith ... in common usage . . . has a well defined and generally understood meaning, being ordinarily used to describe that state of mind denoting honesty of purpose, freedom from intention to defraud, and, generally speaking, means being faithful to one’s duty or obligation. ... It has been well defined as meaning [a]n honest intention to abstain from taking an unconscientious advantage of another, even through the forms or technicalities of law, together with an absence of all information or belief of facts which would render the transaction unconscientious. . . . The determination of good faith involves an inquiry into the party’s motive and purpose as well as actual intent. . . .

“Reasonableness, on the other hand, is an objective standard, involving an analysis of what a person with ordinary prudence would do given the circumstances, without accounting for any particular knowledge or skill. . . . Evidence of what is reasonable, however, may be relevant to determining one’s good faith and is not excluded from playing a part in that determination. . . . Similarly, one’s good faith may be relevant in ascertaining the reasonableness of his actions.” (Citations omitted; emphasis added; internal quotation marks omitted.) Id.; see also Bhatia v. Debek, 287 Conn. 397, 412-13, 948 A.2d 1009 (2008).

In accordance with § 1-1 (a), we apply the definition of “good faith efforts” set forth in Phillipe for the purposes of the reallocation of damages statute, § 52-572h (g) (1). We emphasize that the legislature chose the subjective “good faith efforts” standard, rather than the objective “reasonable efforts” standard. As a result, the trial court is in the best position to make this determination, considering the unique circumstances of each case. See Ayantola v. Board of Trustees of Technical Colleges, supra, 116 Conn. App. 539.

After hearing argument, the court stated: “I think reasonable attempts have been made to locate [them], I mean, [the plaintiff] could go on for years sending someone to Pennsylvania, you know, so I’m going to grant the motion, okay?” Although the court used the phrase “reasonable attempts” instead of “good faith efforts,” we reiterate that “[e]vidence of what is reasonable . . . may be relevant to determining one’s good faith and is not excluded from playing a part in that determination. ” Phillipe v. Thomas, supra, 3 Conn. App. 476. Although the court’s explanation of its ruling was sparse, “[a]s an appellate court, we are entitled to presume that the trial court acted properly and considered all of the evidence.” LeBlanc v. New England Raceway, LLC, 116 Conn. App. 267, 286, 976 A.2d 750 (2009). On the basis of our review of the record, we cannot conclude that the trial court’s finding was clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       Diaz and Hernandez also were defendants at trial and were defaulted for failing to appear. We refer to Metro Taxi as the defendant in this appeal, unless otherwise noted.

       In the underlying action, the jury found the defendant 80 percent negligent and Diaz and Hernandez 20 percent negligent. Deas v. Diaz, supra, 121 Conn. App. 829. The jury awarded the plaintiff a total of $26,500 for noneconomic damages and $19,116.50 for economic damages. Id. The defendant appealed, and this court affirmed the judgment of the trial court. Id., 845.

       Specifically, the plaintiff argued that the defendant was responsible for 100 percent of the uncollectible economic damages and 80 percent of the uncollectible noneconomic damages; see General Statutes § 52-572h (g) (2) and (3); plus interest pursuant to the plaintiffs offer of compromise. In total, the plaintiff sought to have $9833.69 in damages reallocated to the defendant.


author: DiPENTIMA, C. J.

text:
    KEYIN T. WORTH ET AL. v. STEVEN E. KORTA II, COMMISSIONER OF TRANSPORTATION, ET AL.
    (AC 32297)
    DiPentima, C. J., and Robinson and Bishop, Js.
    Argued September 20
    officially released November 15, 2011

      Keyin T. Worth, pro se, the appellant (plaintiff).

      KevinS. Coyne, for the appellees (defendant Armand R. Choquette et al.).
   Opinion

DiPENTIMA, C. J.

The plaintiff, Keyin T. Worth, appeals from the judgment of the trial court rendered in favor of the defendants, Roberta M. Choquette and Armand R. Choquette. On appeal, the plaintiff claims that the court improperly denied her motion to open or set aside the judgment rendered in favor of the defendants. We affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history. The dispute underlying this appeal arose between the parties when the pro se plaintiff claimed that the defendants, whose property abuts the plaintiffs, diverted surface water onto her property, causing damages. In October, 2007, the plaintiff filed a second amended complaint of twelve counts, six of which were brought against the defendants. The plaintiff asserted causes of action against the defendants sounding in negligence, trespass, nuisance, interference with business relations, and negligent infliction of emotional distress, and a claim for a temporary and permanent injunction. In June, 2009, five of the counts against the defendants were withdrawn, leaving only the claim for a temporary and permanent injunction.

In December, 2009, near the end of the trial to the court, the plaintiff filed an application for a temporary injunction and an order to show cause, as well as a motion to submit newly discovered evidence, both of which were denied. On December 15, 2009, the court issued an oral ruling denying injunctive relief and rendering judgment in favor of the defendants. The plaintiff filed a motion to reargue or for reconsideration, which was denied on February 19, 2010. On March 29, 2010, the plaintiff filed a motion to open or set aside the judgment of the court. This motion was denied on April 16, 2010. This appeal followed.

Before addressing whether the court improperly denied the plaintiffs motion to open the judgment, we first respond to the plaintiffs argument that she was treated unfairly due to her status as a pro se litigant. In her brief, the plaintiff argues that her pro se status “put her in a discriminatory second class in front [of] the trial court bench.” The plaintiff argues, for example, that the court improperly refused to give her additional time to procure expert witnesses. In response, the defendants note that “the plaintiff was allowed to disclose an expert witness during the middle of trial. In order to be fair, [the court] then allowed the defendants to disclose an expert witness in response to the plaintiffs expert.” On the final day of trial, the court stated that “[j]udges are suppose[d] to assist and understand the problems of a pro se. And I have done that. And it could be questioned why during the middle of the trial I allowed expert testimony to be taken.”

“While [w]e are aware that [i]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party ... we are also aware that [although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law.” (Citation omitted; internal quotation marks omitted.) Keating v. Ferrandino, 125 Conn. App. 601, 604, 10 A.3d 59 (2010). Our review of the record discloses that throughout the trial, the court took steps to ensure that the plaintiff was not treated as a “second-class” citizen, and that her case would not be prejudiced by her pro se status. Moreover, the court explained to the plaintiff on multiple occasions the burden of proof for her claim for injunctive relief, as well as what elements she still needed to prove before the court could grant an injunction in her favor. We conclude that the court exercised the appropriate level of latitude for the plaintiff as a pro se party.

The plaintiff claims that the court improperly denied her motion to open and set aside the judgment. Specifically, she argues that the court abused its discretion in denying her motion to open because she had newly discovered evidence, which constituted good cause to open the judgment. We disagree.

We first set forth the applicable standard of review. “The denial of a motion to open is an appealable final judgment. . . . Although a motion to open can be filed within four months of a judgment . . . the filing of such a motion does not extend the appeal period for challenging the merits of the underlying judgment unless filed within the [twenty day period provided by Practice Book § 63-1].” (Internal quotation marks omitted.) Searles v. Schulman, 58 Conn. App. 373, 376, 753 A.2d 420, cert. denied, 254 Conn. 930, 761 A.2d 755 (2000). “When a motion to open is filed more than twenty days after the judgment, the appeal from the denial of that motion can test only whether the trial court abused its discretion in failing to open the judgment and not the propriety of the merits of the underlying judgment. . . . This is so because otherwise the same issues that could have been resolved if timely raised would nevertheless be resolved, which would, in effect, extend the time to appeal.” (Internal quotation marks omitted.) Langewisch v. New England Residential Services, Inc., 113 Conn. App. 290, 293, 966 A.2d 318 (2009).

The following additional procedural history is relevant to the plaintiffs claim. Here, the plaintiff filed her motion to open on March 29, 2010, more than twenty days after the court rendered its judgment on December 15, 2009 and denied her motion to reargue on February 19, 2010. Accordingly, because the plaintiffs motion to open was filed more than twenty days after the court’s denial of her motion to reargue; see Practice Book § 63-1 (a) and (c) (1); our review is limited to whether the court abused its discretion in denying the plaintiffs motion to open or set aside the judgment rendered in favor of the defendants.

“The court’s denial of the plaintiffs motion to open cannot be held to be an abuse of discretion if it appears that the plaintiff has not been prevented from prosecuting the claim by mistake, accident, or other reasonable cause. ... In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.” (Citations omitted; internal quotation marks omitted.) Langewisch v. New England Residential Services, Inc., supra, 113 Conn. App. 294-95.

The plaintiff argues that the court improperly denied her motion to open because she had newly discovered evidence, which constituted good cause to open the judgment. We disagree. “The criteria for a court to open a judgment is analogous to the conditions needed for a petition for a new trial on grounds of newly discovered evidence.” (Internal quotation marks omitted.) McIver v. Warden, 28 Conn. App. 195, 208, 612 A.2d 103, cert. denied, 224 Conn. 906, 615 A.2d 1048 (1992). “Apetition for a new trial is governed by [General Statutes] § 52-270 (a), which provides in relevant part: The Superior Court may grant a new trial of any action that may come before it, for . . . the discovery of new evidence .... The standard that governs the granting of a petition for a new trial based on newly discovered evidence is well established. The petitioner must demonstrate, by a preponderance of the evidence, that: (1) the proffered evidence is newly discovered, such that it could not have been discovered earlier by the exercise of due diligence; (2) it would be material on a new trial; (3) it is not merely cumulative; and (4) it is likely to produce a different result in a new trial.” (Emphasis in original; internal quotation marks omitted.) Terracino v. Fairway Asset Management, Inc., 75 Conn. App. 63, 73-74, 815 A.2d 157, cert. denied, 263 Conn. 920, 822 A.2d 245 (2003). “These rules are motivated by the policy that [o]nce a judgment [is] rendered it is to be considered final and it should be left undisturbed by post-trial motions except for a good and compelling reason.” (Internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 107, 952 A.2d 1 (2008).

Here, near the end of trial, the plaintiff sought to present evidence that “no ditch and/or water path of any kind was in existence] up until in the late 1990’s.” In her memorandum of law in support of her motion to open the judgment, the plaintiff stated that the source of this evidence was an affidavit from the daughter of the original owner of the defendants’ property and from a conversation with a member of the Stetson family, the family who had installed a drain on her property around 1995. The plaintiff explained that she was delayed in presenting such evidence because “even though [she] could offer the [family member’s] information, [she] could not offer this information earlier until she has confirmed the existence of the Stetson family.”

First, the court determined that “[t]he original origin of the water in question was not relevant to this court’s decision. The court based its decision on the issue of an injunction that there was presently no irreparable harm and that the plaintiff had an adequate remedy at law. It is the present situation existing at the time of trial that is important, not the original origin of some of the water which predated the ownership by the plaintiff and the defendants.” We agree that the origin of the alleged “ditch and/or water path” is irrelevant to the claim for injunctive relief. “The issuance of an injunction is the exercise of an extraordinary power which rests within the sound discretion of the court, and the justiciable interest which entitles one to seek redress in an action for injunctive relief is at least one founded on the imminence of substantial and irreparable injury.” (Emphasis added; internal quotation marks omitted.) Karls v. Alexandra Realty Corp., 179 Conn. 390, 401, 426 A.2d 784 (1980).

Second, the court stated that “if the original origin of the water is evidence that the plaintiff wishes to produce, through due diligence the plaintiff had an opportunity to search the land records and do other investigation to find the people that she would now like to have testify.” See Chapman Lumber, Inc. v. Tager, supra, 288 Conn. 108 (denying motion to open where matters defendant’s counsel wished to explore occurred years before trial and were related to proceedings to which defendant had had complete access). The plaintiffs explanation for her delay in presenting the newly discovered evidence is unpersuasive. The plaintiff could have “confirmed the existence” of the Stetson family long before trial. While we recognize that a petition for a new trial is equitable in nature, “[h]e who seeks equity must do equity . . . .” (Internal quotation marks omitted.) Terracino v. Fairway Asset Management, Inc., supra, 75 Conn. App. 75. The court concluded that the plaintiffs newly discovered evidence was irrelevant to its denial of injunctive relief, and that such evidence would likely not produce a different result in a new trial. We agree and, therefore, conclude that the court did not abuse its discretion in denying the plaintiffs motion to open the judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff also named her business, Beautiful Things Boutiques, Inc., as an additional plaintiff, but this entity is not joined in the present appeal. Therefore, we refer to Keyin T. Worth as the plaintiff.

       The plaintiff also named the department of transportation (department), its commissioner, Steven E. Korta (commissioner), and the state of Connecticut as defendants. In January, 2009, the court granted the motion for a judgment of nonsuit filed by the department, the commissioner and the state. Accordingly, we refer to Roberta M. Choquette and Armand R. Choquette as the defendants.

       In addition, the plaintiff makes several additional claims challenging the merits of the court’s judgment, which denied her claim for a temporary and permanent injunction. Because we conclude that the court did not abuse its discretion in denying the plaintiffs motion to open the judgment, we decline to review these claims.

       See footnote 2 of this opinion.

       During trial, for example, the court stated: “And [opposing counsel], I recognize your difficulty in dealing with someone who’s pro se and is not a lawyer. So I understand this and I have the same difficulty and she has a difficulty because she is a pro se, and this is a tough case to prove, but she has a right to prove it.”

       Practice Book § 63-1 provides in relevant part: “(a) Unless a different time period is provided by statute, an appeal must be filed within twenty days of the date notice of the judgment or decision is given. The appeal period may be extended if permitted by Section 66-1 (a). If circumstances give rise to a new appeal period as provided in subsection (c) of this rule, such new period may be similarly extended as long as no extension of the original appeal period was obtained. If a motion is filed within the appeal period that might give rise to a new appeal period as provided in subsection (c) of this rule, the appeal may be filed either in the original appeal period, which continues to run, or in the new appeal period. As used in this rule, “appeal period” includes any extension of such period obtained pursuant to Section 66-1 (a). . . .
      “(c) (1) If a motion is filed within the appeal period that, if granted, would render the judgment, decision or acceptance of the verdict ineffective, either a new twenty day period or applicable statutory time period for filing the appeal shall begin on the day that notice of the ruling is given on the last such outstanding motion, except as provided for additur or remittitur in the next paragraph.
      “If a motion for additur or remittitur is filed within the appeal period and granted, a new twenty day appeal period shall begin upon the earlier of (A) acceptance of the additur or remittitur or (B) expiration of the time set for the acceptance. If the motion is denied, the new appeal period shall begin on the day that notice of the ruling is given.
      “Motions that, if granted, would render ajudgment, decision or acceptance of the verdict ineffective include, but are not limited to, motions that seek: the opening or setting aside of the judgment; a new trial; the setting aside of the verdict; judgment notwithstanding the verdict; reargument of the judgment or decision; collateral source reduction; additur; remittitur; or any alteration of the terms of the judgment.
      “Motions that do not give rise to a new appeal period include those that seek: clarification or articulation, as opposed to alteration, of the terms of the judgment or decision; a written or transcribed statement of the trial court’s decision; or reargument of a motion listed in the previous paragraph.
      “If, within the appeal period, any motion is filed, pursuant to Section 63-6 or 63-7, seeking waiver of fees, costs and security or appointment of counsel, a new twenty day appeal period or statutory period for filing the appeal shall begin on the day that notice of the ruling is given on the last such outstanding motion. If a party files, pursuant to Section 66-6, a motion for review of any such motion, the new appeal period shall begin on the day that notice of the ruling is given on the motion for review. . .