author: ROBINSON, J.

text:
    STATE OF CONNECTICUT v. ESTEBAN Q. HERNAIZ
    (AC 33297)
    Lavine, Robinson and Pellegrino, Js.
    Argued November 13, 2012
    officially released February 19, 2013

      John C. Drapp III, assigned counsel, with whom, on the brief, were Joseph A. Jaumann, assigned counsel, and Diana M. Gomez, assigned counsel, for the appellant (defendant).

      Melissa Patterson, assistant state’s attorney, with whom, on the brief, was Brian Preleski, state’s attorney, for the appellee (state).
   Opinion

ROBINSON, J.

The defendant, Esteban Q. Hemaiz, appeals from the judgment of conviction, rendered after a jury trial, of one count of assault in the second degree in violation of General Statutes § 53a-60 (a) (2) and one count of carrying a dangerous weapon in violation of General Statutes § 53-206 (a). On appeal, the defendant’s sole claim is that the trial court abused its discretion in denying his request to replace his trial counsel. We affirm the judgment of the trial court.

By way of a substitute long form information, the state charged the defendant with one count of assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and one count of carrying a dangerous weapon in violation of General Statutes § 53-206 (a) in connection with a stabbing that occurred on December 6,2008. The case was placed on the trial list and jury selection began on September 27, 2010. Before jury selection resumed on September 28, 2010, the defendant addressed the court regarding his attorney, stating: “I’m upset. I want him fired. ... I don’t want him as a lawyer. He’s working against me.” Upon further inquiry from the court, the defendant complained that he had not received evidence, particularly the results of a DNA test and police records of the state’s potential witnesses, that he had requested. The court addressed these outstanding evidentiary issues with the attorneys and advised the defendant that his attorney had reviewed the entire file and that he would have an opportunity to review the evidence with his attorney before trial commenced.

At a status conference on October 5, 2010, the court reviewed pretrial motions and security issues with ail of the parties. During that review, the defendant stated, “I don’t want you as my lawyer. I said that from day one. I do not want you as my lawyer. It’s real simple. I don’t want him as my lawyer.” Despite declaring that it was “going over these issues right now,” the court did not address the defendant’s statement. It continued reviewing its trial procedure, directed the defendant’s counsel to explain the trial process to the defendant and concluded the conference.

That afternoon, the court received a letter, dated October 1, 2010, which the defendant had written. In the letter, the defendant complained that his attorney had not given him his paperwork on the previous Friday, as the court had instructed. He asked how his lawyer could proceed to trial without providing him with any information and stated, “this man I don’t want [him] as my [lawyer].” The defendant again raised the issue that he had not received the results of his DNA test nor the police records of witnesses. He concluded by asking for an opportunity to explain himself.

The next day, on October 6,2010, the court addressed the defendant’s letter. The court noted that the letter could “be interpreted, and I’m assuming on an appellate review it probably would be interpreted, as an unequivocal request . . . not to have [his current attorney] represent him. So as a result of that, I told the attorneys yesterday that I would deal with this issue today.” After the defendant’s attorney indicated that he was ready for trial and willing to remain the attorney on record, the court turned to the defendant. When asked why he no longer wanted his attorney, the defendant said that his attorney lied to him. He explained that his attorney had seen him four times while the defendant had been incarcerated and each time the attorney would have “a new different story” about what the plea offer would be. The defendant also maintained that his attorney lied both to him and his mother about whether he could win the case. He stated that he did not feel safe and that his attorney was not doing his best work. Finally, the defendant claimed that his attorney never communicated with him, that the private investigator waited until the last minute to speak to witnesses despite receiving their information six months earlier and that he did not feel safe because the private investigator wore different colored shoes.

When the defendant concluded, the court asked his attorney questions regarding the allegations. Specifically, it asked about how and when plea offers were made, what actions the attorney had taken to prepare for trial and how much communication he had with his client. The attorney stated that he had reviewed all the documents, spoken with potential witnesses, worked with a private investigator from the public defender’s office, discussed reports from the private investigator with his client, investigated his other pending cases, presented his client with the strengths and weaknesses of his case, communicated offers to him and pursued evidence from the state. The court then asked the defendant if he would like to hire a new lawyer or have a public defender. The defendant stated that he wanted to hire another lawyer. When the court asked if he wanted to represent himself, the defendant said, “No, I would like to have a lawyer present, but I would like to hire one, sir.” The court learned that the defendant’s current attorney was his fourth attorney and again confirmed that the defendant did not want to represent himself. The defendant indicated that he had not yet communicated with an attorney, but, in response to the court’s question of whether he would tell a new lawyer that a jury was selected and evidence was set to begin the next day, he stated: “That’s what I’ve been trying to tell you the week before ... I didn’t want him as my lawyer. I’d say so. ... I don’t want any of this in my lawyer before all this start. Because I will try to get a lawyer. I mean, you remember? I said it. I didn’t want him being my lawyer.”

After a short recess, the court gave its oral decision. It began by identifying the issue, namely, that the defendant was seeking to hire new counsel, not to proceed as a self-represented litigant or have another special public defender appointed. The court found that the defendant’s prior request at the start of jury selection was not an unequivocal request for new counsel, but rather a request for information and evidence. It then analyzed the defendant’s request pursuant to the exceptional circumstances test first enunciated in Connecticut in State v. Drakeford, 202 Conn. 75, 83-84, 519 A.2d 1194 (1987). The court found that it had given the defendant and his counsel time to discuss the plea offers, that the defendant was offered a plea that he did not want to accept, that the defendant’s counsel communicated with the defendant regarding the strengths and weaknesses of the case as well as the likelihood of prevailing and that on a particular day, the defendant’s counsel wore two different colored shoes. The court credited defense counsel’s representations that an investigation had taken place, that he visited with the defendant four times and that he had the defendant transported to court to discuss the case. Based on the defendant’s representations regarding his and his mother’s conversations with his attorney, the court made the “logical reasonable inference that [the defendant’s counsel was] explaining to him the strengths and weaknesses of the case, and the risks of his exposure of incarceration if he were convicted. [The defendant] calls that lying. The court doesn’t consider that lying.” It concluded that there was “insufficient evidence in front of [the court] to find . . . exceptional circumstances for relieving [the defendant’s counsel] from representing [the defendant].” Nevertheless, the court noted that if the defendant “wishes to hire counsel today, and that counsel were to indicate to the court today, or first thing tomorrow morning, then he can have counsel to represent him. And the court will deal with any issues that may develop as it relates to that. But at this point in time, as of right now, the court is not relieving [the defendant’s counsel] from representing [the defendant] at trial.”

On October 7, 2010, the court again addressed the defendant’s assertion that he had requested new counsel during jury selection. After listening to the court proceeding from September 28, 2010, the court concluded that “the prior exchange on [September 28] was not an unequivocal request for counsel.” The defendant did not obtain new counsel and the trial began. On October 15, 2010, the jury returned a verdict of guilty of assault in the second degree, a lesser included offense to the charged offense of assault in the first degree, and carrying a dangerous weapon. On February 18, 2011, the court sentenced the defendant to a total effective term of eight years of incarceration. This appeal followed.

“The United States Supreme Court has definitively held that due process requires that the accused have the assistance of counsel for his defense. . . . The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.” (Internal quotation marks omitted.) State v. Williams, 102 Conn. App. 168, 204, 926 A.2d 7, cert. denied, 284 Conn. 906, 931 A.2d 267 (2007). “There is [however] no unlimited opportunity to obtain alternate counsel. . . . It is within the trial court’s discretion to determine whether a factual basis exists for appointing new counsel. . . . Moreover, absent a factual record revealing an abuse of that discretion, the court’s failure to allow new counsel is not reversible error.” (Citations omitted; internal quotation marks omitted.) State v. Drakeford, supra, 202 Conn. 83.

“A defendant has no unbridled right to discharge counsel on the eve of trial. ... In order to work a delay by a last minute discharge of counsel there must exist exceptional circumstances.” (Emphasis in original; internal quotation marks omitted.) Id., 83-84. “A request for substitution of counsel requires support by a substantial reason, and may not be used to achieve delay.” Id., 83.

“While a criminal defendant’s right to be represented by counsel implies a degree of freedom to be represented by counsel of [the] defendant’s choice . . . this guarantee does not grant a defendant an unlimited opportunity to obtain alternate counsel on the eve of trial. . . . Although the court has a responsibility to inquire into and to evaluate carefully all substantial complaints concerning court-appointed counsel . . . the extent of such inquiry lies within the court’s sound exercise of discretion. After it has given the defendant an adequate opportunity to inform it of his or her complaints, the court has broad discretion in determining whether circumstances warrant the appointment of new counsel or the dismissal of the defendant’s existing counsel.” (Internal quotation marks omitted.) State v. Williams, supra, 102 Conn. App. 205.

“[An appellate court] must distinguish between a substantial and timely request for new counsel pursued in good faith, and one made for insufficient cause on the eve or in the middle of trial.” State v. Drakeford, supra, 202 Conn. 82. “In evaluating whether the trial court abused its discretion in denying [the] defendant’s motion for substitution of counsel, [an appellate court] should consider the following factors: [t]he timeliness of the motion; adequacy of the court’s inquiry into the defendant’s complaint; and whether the attomey/client conflict was so great that it had resulted in total lack of communication preventing an adequate defense.” (Internal quotation marks omitted.) State v. Williams, supra, 102 Conn. App. 205.

The defendant claims that the court’s denial of his request for new counsel was an abuse of discretion that warrants a reversal of his judgment of conviction. Though noting that no Connecticut authority applying the exceptional circumstances test to factually similar circumstances has allowed for a substitution of counsel, the defendant nevertheless urges this court to reverse the court’s judgment. He cites the dissent in State v. Watson, 198 Conn. 598, 504 A.2d 497 (1986), as well as both the concurrence and the dissent in State v. Hamilton, 228 Conn. 234, 636 A.2d 760 (1994), to support his position. We are not persuaded.

“[I]t is manifest to our hierarchical judicial system that [our Supreme Court] has the final say on matters of Connecticut law and that the Appellate Court and Superior Court are bound by [its] precedent. See, e.g., Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 195, 676 A.2d 831 (1996) (‘[i]t is axiomatic that a trial court is bound by Supreme Court precedent’); Martin v. Plainville, 40 Conn. App. 179, 182, 669 A.2d 1241 (1996) (Appellate Court, as intermediate court, is prevented from ‘reexamining or reevaluating Supreme Court precedent’), aff'd, 240 Conn. 105, 689 A.2d 1125 (1997); Lash v. Aetna Casualty & Surety Co., 36 Conn. App. 623, 624, 652 A.2d 526 (1995) (Appellate Court is ‘bound by Supreme Court precedent’), aff'd, 236 Conn. 318, 673 A.2d 84 (1996).” Stuart v. Stuart, 297 Conn. 26, 45-46, 996 A.2d 259 (2010).

Our precedent requires that exceptional circumstances must exist in order to discharge counsel on the eve of trial. State v. Drakeford, supra, 202 Conn. 83-84. Before making its decision, the court thoroughly questioned the defendant and the attorneys. It probed the defendant’s reasons for wanting new counsel and elicited information from the defendant’s attorney about the defendant’s allegations. The court also asked about the defendant’s efforts to obtain new counsel given that evidence would begin the following morning. The defendant’s attorney detailed how he had prepared for trial and stated his belief that he could continue to represent the defendant. The defendant admitted that he had not yet begun to seek out new counsel. After a recess, the court examined the defendant’s reasons for seeking new counsel and concluded that they did not establish exceptional circumstances. Even after its ruling, the court indicated that it would allow a new attorney to enter an appearance if he or she did so by the next morning. Moreover, the defendant conceded at oral argument before this court that exceptional circumstances did not exist in this case. Given that the defendant made his request the day before the evidence was set to begin, that the court thoroughly inquired into the defendant’s complaint and that the defendant’s attorney expressed that he could continue to represent the defendant, we conclude that the court did not abuse its discretion in finding that exceptional circumstances did not exist and, accordingly, in denying the defendant’s request for new counsel.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant corrected the court at the end of the hearing, clarifying that the private investigator was the person who had worn two different colors of shoes, not his attorney.


source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    BIRUTE ZITKENE v. ROMUALDAS ZITKUS
    (AC 33913)
    Gruendel, Robinson and Schaller, Js.

      Argued October 12, 2012
    officially released February 19, 2013

      Igor G. Kuperman, for the appellant (plaintiff).

      Romualdas Zitkus, pro se, the appellee (defendant).
   Opinion

GRUENDEL, J.

Distilled to its essence, this case involves the question of whether the courts of this state should recognize a judgment of dissolution rendered in the Republic of Lithuania in 2009. The plaintiff, Birute Zitkene, appeals from the judgment of the trial court granting the motion of the defendant, Romualdas Zit-kus, to dismiss her dissolution action. The plaintiff claims that the court improperly concluded that it lacked subject matter jurisdiction. We affirm the judgment of the trial court.

“A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.” (Internal quotation marks omitted.) Kawecki v. Saas, 132 Conn. App. 644, 648, 33 A.3d 778 (2011). “When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light. ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. ... In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint. . . . Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts]. ... If affidavits and/or other evidence submitted in support of a defendant’s motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits ... or other evidence, the trial court may dismiss the action without further proceedings.” (Citations omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651-52, 974 A.2d 669 (2009).

The record before us reveals the following facts and procedural history. The parties married in Lithuania on August 4, 1963. At that time, they were citizens and residents of Lithuania. The parties relocated to the United States approximately thirty years later. They subsequently separated and the plaintiff moved back to Lithuania. In 2004, the defendant learned that the plaintiff had commenced dissolution proceedings against him in a Lithuanian court. In response, the defendant retained an agent authorized under Lithuanian law to appear before that court on his behalf.

The parties, through their respective attorneys in Lithuania, engaged in extensive negotiations regarding the distribution of the marital property, which culminated in a settlement agreement entered into by the parties on June 2, 2009. The parties and their attorneys appeared before the Kaunas City District Court in Lithuania on June 11, 2009, requesting approval of the settlement agreement. At that time, the court asked the parties a series of questions to ensure that they understood the nature of the agreement and that they were entering into it willingly and without fraud or undue influence. After the parties informed the court that they freely and knowingly entered into the agreement, the court approved the agreement and rendered judgment dissolving their marriage.

Under the terms of the agreement, the plaintiff received the “greater share” of the marital property, including a residence in Kaunas, Lithuania, and a hotel in Palanga, Lithuania. The agreement further obligated the plaintiff to pay the defendant, through a series of installments, a total of 135,000 in Lithuanian currency in exchange for that greater share.

After making the first two installment payments, the plaintiff ceased making the payments required under the agreement. She thereafter filed an appeal from the judgment of the Kaunas City District Court, which was heard by a three judge panel of the Kaunas Area Court, which, for convenience, we shall refer to as the Lithuanian appellate court. In that appeal, the plaintiff did not allege any fraud, duress or misrepresentation on the part of the defendant. Rather, she alleged that “due to her difficult material situation” and the defendant’s superior financial position at that time, her obligation to make the required installment payments should either be excused or deferred.

In its written decision dated March 15, 2010, the Lithuanian appellate court found no merit in the plaintiffs appeal. It stated in relevant part: “The panel does not agree with the plaintiffs argumentation since in dissolving the marriage with the defendant and in concluding the agreement concerning the legal consequences of the divorce, it must have been clear to the plaintiff that pursuant to this agreement she was undertaking to pay the defendant LTL 135,000 for the part of the defendant’s real estate awarded to her. At that time the plaintiff must have realistically evaluated her ability to discharge the obligations assumed pursuant to the agreement. The plaintiff . . . indicates that the essential reason why she cannot perform the agreement is that her financial situation has deteriorated .... [T]he evidence assembled in the case and the circumstances shown in the June 11, 2009 decision of the Kaunas City District Court confirm that after the dissolution of the marriage the plaintiff was awarded not only the flat at V. Putvinskio g. 38-23, Kaunas, but also other real estate, i.e., a 247 sq. m. building at Ausros Takas 11, Palanga. With regard to this, the panel states that the plaintiff, in disposing of property with great value, has a real possibility of settling with the defendant. The panel also dismisses as unfounded the plaintiffs arguments that the defendant has various properties in the [United States] which did not go to both spouses after the dissolution of the marriage but only to the defendant and that this could be a reason why the plaintiff can petition the court to distribute the execution of the decision. It should be noted that the agreement between the parties was concluded by common agreement and there are no data in the case that the plaintiff concluded the agreement against her will; therefore the panel dismisses the arguments given by the plaintiff. ... In the opinion of the panel, the plaintiff has not submitted to the court any evidence refuting the defendant’s arguments that the plaintiff is engaged in a business and that the pension she receives is not the plaintiffs only source of income. The evidence in this case confirms that the plaintiff has real estate, which she can dispose of in seeking to settle with the defendant on time and therefore it should be deemed that the plaintiff has not shown any unfavourable circumstances preventing her from fulfilling the 11 June 2009 decision of the Kaunas City District Court.” Accordingly, the Lithuanian appellate court dismissed the plaintiffs appeal.

Months later, the plaintiff commenced the present dissolution action in the Connecticut Superior Court. That one and one-half page pleading alleged in relevant part that the parties “entered into [an] agreement on [June 2, 2009] dissolving their marriage and the agreement has been accepted by the Lithuanian [c]ourt,” and “[t]hat the aforesaid agreement is in contravention of Connecticut public policy and is invalid as obtained by gross misrepresentations of facts by the [defendant; duress by the [defendant; and mistakes in interpreting [United States] law committed by the Lithuanian [c]ourt.” The complaint requested a dissolution of the parties’ marriage, and the prayer for relief sought an equitable division of the parties’ real property, personal property and debts, temporary and permanent alimony and such other equitable relief as the court deemed fair and equitable.

On April 4, 2011, the defendant filed a motion to dismiss in which he alleged, inter aha, that the parties had “entered into an agreement in Lithuania, which was adopted as a judgment of the Lithuanian [c]ourt.” The motion further maintained that “to the extent the plaintiff wishes to challenge the validity of the [agreement, she should do so before the Lithuanian court, which issued a judgment adopting same and has jurisdiction over subsequent proceedings to enforce it.” The plaintiff filed an objection to that motion on May 5, 2011; the defendant filed his reply to the plaintiffs objection on June 9, 2011. In support thereof, the defendant appended to that pleading a copy of the March 15, 2010 decision of the Lithuanian appellate court and an affidavit. In his affidavit, the defendant, quoting from the decision of the Lithuanian appellate court, averred that the parties reached a “ ‘peaceful settlement agreement’ ” in 2009. He further attested that “[o]n June 11, 2009, [the plaintiff] and I, along with our respective attorneys, appeared before the Lithuanian [c]ourt, and sought the court’s approval of our agreement. . . . Before the agreement was approved by the [c]ourt, the judge asked us a series of questions to make sure that we understood the nature of the agreement, and that we were entering into the agreement willingly and without fraud or undue influence. . . . Both of us informed the [c]ourt that we fully understood the terms of that agreement, and were entering into it of our own free will. . . . The agreement was reviewed and approved by the Lithuanian [c]ourt, and title to the property subject to the approved agreement was transferred to [the plaintiff].” The defendant also represented that, after failing to make the payments required under the terms of the dissolution judgment, the plaintiff “filed an appeal of the original decision approving the agreement stating that she could not comply with the agreement because her financial situation had worsened. . . . The [Lithuanian appellate court] reviewed her petition, and ruled in my favor.”

One week later, the plaintiff on June 17, 2011, filed an affidavit in support of her objection to the motion to dismiss. That affidavit made no mention of the judgment of dissolution rendered on June 11, 2009, by the Kaunas City District Court or the March 15, 2010 decision of the Lithuanian appellate court dismissing her appeal thereof. It further did not address the defendant’s sworn attestation that, before adopting the parties’ settlement agreement, the Lithuanian judge asked the parties a series of questions to ensure that the agreement was freely and knowingly entered into without fraud or undue influence, and that the parties so indicated at that time. Rather, the plaintiffs affidavit states that she presently resides in Kaunas, Lithuania, that she had “not been served with any form process [or notice] in connection with any divorce proceedings in the New York [courts]” and that she did not learn of the ex parte proceeding in New York until April, 2011.

The court heard argument on the motion to dismiss on July 5, 2011, at which time a copy of the decision of the Lithuanian appellate court was admitted as an exhibit without objection. In its subsequent memorandum of decision, the court granted comity to the judgment of dissolution rendered by the Lithuanian court in 2009. It thus concluded that “[s]ince there is no valid marriage between the plaintiff and the defendant, this court lacks subject matter jurisdiction over the plaintiffs dissolution of marriage action.” The court granted the defendant’s motion to dismiss and this appeal followed.

We begin our analysis with a review of the doctrine of comity applied by the trial court. “[C]omity is a flexible doctrine, the application of which rests in the discretion of the state where enforcement of a foreign order is sought.” Walzer v. Walzer, 173 Conn. 62, 70, 376 A.2d 414 (1977). The doctrine traces its roots to the decision of the United States Supreme Court in Hilton v. Guyot, 159 U.S. 113, 16 S. Ct. 139, 40 L. Ed. 95 (1895), which observed that “ ‘[cjomity,’ in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.” Id., 163-64. “[W]here there has been opportunity for a full and fair trial abroad before a court of competent jurisdiction, conducting the trial upon regular proceedings, after due citation or voluntary appearance of the defendant, and under a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country and those of other countries, and there is nothing to show either prejudice in the court, or in the system of laws under which it was sitting, or fraud in procuring the judgment, or any other special reason why the comity of this nation should not allow it full effect, the merits of the case should not, in an action brought in this country upon the judgment, be tried afresh, as on a new trial or an appeal, upon the mere assertion of the party that the judgment was erroneous in law or in fact.” Id., 202-203.

Our Supreme Court likewise has explained that “judgments of courts of foreign countries are recognized in the United States because of the comity due to the courts and judgments of one nation from another. Such recognition is granted to foreign judgments with due regard to international duty and convenience, on the one hand, and to rights of citizens of the United States and others under the protection of its laws, on the other hand. This principle is frequently applied in divorce cases; a decree of divorce granted in one country by a court having jurisdiction to do so will be given full force and effect in another country by comity .... The principle of comity, however, has several important exceptions and qualifications. A decree of divorce will not be recognized by comity where it was obtained by a procedure which denies due process of law in the real sense of the term, or was obtained by fraud, or where the divorce offends the public policy of the state in which recognition is sought, or where the foreign court lacked jurisdiction.” Litvaitis v. Litvaitis, 162 Conn. 540, 544-45, 295 A.2d 519 (1972).

With respect to establishing the jurisdiction of the foreign court, “courts of this country will not generally recognize a judgment of divorce granted by a court of another country unless, by the standards of the jurisdiction in which recognition is sought, at least one of the spouses was a good faith domiciliary in the foreign nation at the time the decree was rendered.” (Internal quotation marks omitted.) Bruneau v. Bruneau, 3 Conn. App. 453, 455, 489 A.2d 1049 (1985). It is undisputed that the plaintiff was domiciled in Lithuania at the time that the Kaunas City District Court rendered judgment dissolving their marriage, that both parties appeared before that court and that both parties agreed to the settlement agreement submitted thereto. On that basis, the trial court determined that the Kaunas City District Court “had jurisdiction to enter the divorce decree.” The plaintiff does not argue otherwise in this appeal.

Rather, the plaintiff argues that the court abused its discretion in applying principles of comity in light of the one sentence allegation in her complaint that the defendant perpetuated a fraud in that proceeding and that the separation agreement entered into by the parties contravenes Connecticut public policy. As our Supreme Court has explained, when a litigant seeks to enforce a foreign judgment, the burden falls to the assailant to “prove, by a preponderance of the evidence, facts that demonstrate that the foreign court lacked jurisdiction.” Maltas v. Maltas, 298 Conn. 354, 364 n.11, 2 A.3d 902 (2010); accord Donnelly v. Federal Aviation Administration, 411 F.3d 267, 270-71 (D.C. Cir. 2005) (holding that “principles of comity suggest that [a foreign] judgment should be given weight as prima facie evidence of the facts underlying it” and that burden is on party challenging use of foreign judgment to impeach its reliability); John v. Baker, 30 P.3d 68, 72 (Alaska 2001) (party challenging validity of foreign judgment has burden of proof); Leon v. Numkena, 142 Ariz. 307, 309, 689 P.2d 566 (App. 1984) (“the burden of proof is upon the party attacking the validity of a foreign judgment”); Malik v. Malik, 99 Md. App. 521, 536, 638 A.2d 1184 (1994) (“Pakistani court’s custody order is presumed to be correct, and this presumption shifts to [party challenging comity] the burden of proving by a preponderance of evidence that [comity is not warranted]”); In re Marriage of Red Fox, 23 Or. App. 393, 400, 542 P.2d 918 (1975) (“the burden of proof falls upon one attacking the validity of a foreign judgment”). With particular respect to allegations of fraud, it is well established that “[c]lear and convincing evidence of fraud is required in order successfully to attack a foreign judgment . . . Clarkson Co., Ltd. v. Shaheen, 544 F.2d 624, 631 (2d Cir. 1976); see also Chevron Corp. v. Donziger, United States District Court, Docket No. 11 Civ. 0691 (LAK) (S.D.N.Y. July 31, 2012) (“this [cjourt holds, consistent with virtually every other court to express a view on the issue, that a party resisting enforcement of a foreign judgment on the ground of fraud in its procurement bears the burden of proving the alleged fraud”). The plaintiff has not met that burden.

In moving to dismiss the present action, the defendant appended to his pleadings a sworn affidavit and a copy of the March 15, 2010 decision of the Lithuanian appellate court. Those materials provided the court with supplementary undisputed facts that (1) the plaintiff commenced a dissolution proceeding in Lithuania in approximately 2004; (2) following expensive negotiations, the parties reached a settlement agreement in 2009; (3) the parties and their attorneys appeared before the Kaunas City District Court on June 11,2009, seeking approval of the settlement agreement; (4) the court, prior to approving the agreement, “asked [the parties] a series of questions to make sure that [they] understood the nature of the agreement, and that [they] were entering into the agreement willingly and without fraud or undue influence”; (5) both the plaintiff and the defendant “informed the court that [they] fully understood the terms of that agreement, and were entering into it of [their] own free will”; (6) the agreement “was reviewed and approved by the Lithuanian [c]ourt, and title to the property subject to the approved agreement was transferred to [the plaintiff]”; (7) the plaintiff received the “greater share” of the marital property, including a residence in Kaunas, Lithuania, and a hotel in Palanga, Lithuania; (8) the plaintiff thereafter filed an appeal of the judgment of dissolution seeking to excuse or defer her obligation under the agreement to make certain payments to the defendant; (9) the plaintiff raised no allegation of fraud, duress or misrepresentation on the part of the defendant in that appeal, but simply alleged that she was financially unable to meet her obligation to make the required payments; (10) the Lithuanian appellate court found no merit in the plaintiffs appeal; and (11) the Lithuanian appellate court specifically found that “the agreement between the parties was concluded by common agreement and there are no data in the case that the plaintiff concluded the agreement against her will . . .

That evidence provides an ample basis for the trial court to grant comity to the judgment of dissolution rendered by the Lithuanian court in 2009. The plaintiff failed to undermine that conclusion with counteraffida-vits disputing the aforementioned facts set forth in the defendant’s affidavit and the decision of the Lithuanian appellate court. See Practice Book § 10-31 (b) (“[a]ny adverse party who objects to [the] motion [to dismiss] shall . . . file and serve . . . where appropriate, supporting affidavits”). Accordingly, as this is a case where the plaintiffs complaint “is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint. . . . Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts].” (Citations omitted; internal quotation marks omitted.) Conboy v. State, supra, 292 Conn. 651-52. Because the court, in its discretion, properly could grant comity to the judgment of dissolution rendered by the Lithuanian court in light of the undisputed facts set forth in the defendant’s affidavit and the decision of the Lithuanian appellate court, it was free to dismiss the plaintiffs action “without further proceedings”; id., 652; as that determination conclusively established that jurisdiction was lacking in the present case.

Moreover, we are mindful that “a party may be precluded from attacking a foreign divorce decree if such an attack would be inequitable under the circumstances. . . . [O]ut-of-state divorces . . . should not lightly be overturned where the parties had intended to channel the dissolution of their marriage in a legitimate rather than in an illegitimate fashion. . . . [I]f the person attacking the divorce is, in doing so, taking a position inconsistent with [her] past conduct, or if the parties to the action have relied upon the divorce, and if, in addition, holding the divorce invalid will unset relationships or expectations formed in reliance upon the divorce, then estoppel will preclude calling the divorce in question. . . . Thus, if one party has accepted benefits under the original decree ... an invalid decree will be held immune from attack . . . .” (Citations omitted; internal quotation marks omitted.) Bruneau v. Bruneau, supra, 3 Conn. App. 457-58.

It is undisputed that the plaintiff received the “greater share” of the marital property under the judgment of dissolution rendered by the Lithuanian court, which included the residence in Kaunas, Lithuania, and the hotel in Paianga, Lithuania. In the years since, she has retained the benefits of that portion of the award, while disregarding for a time her concomitant burden to make the installment payments to the defendant. In addition, by now alleging in Connecticut’s courts fraud on the part of the defendant in the procurement of the Lithuanian judgment of dissolution, the plaintiff is taking a position inconsistent with her past conduct in challenging that judgment before the Lithuanian appellate court. Those considerations provide a further basis on which the court properly could recognize the Lithuanian judgment of dissolution. See Bruneau v. Bruneau, supra, 3 Conn. App. 457-58.

We therefore conclude that the court did not abuse its discretion in granting comity to the judgment of dissolution rendered by the Kaunas City District Court on June 11, 2009. As a result, the court properly dismissed the present action for lack of subject matter jurisdiction.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also retained an attorney in New York, where he then resided, who advised the defendant to seek an ex parte divorce in New York. In his affidavit, the defendant avers that he obtained an ex parte divorce decree from the Supreme Court of New York in 2006, that the court at that time advised the defendant that it could not distribute any marital property and that a separate proceeding in Lithuania was necessary to do so. The record does not indicate that the defendant filed that foreign matrimonial judgment in Connecticut pursuant to General Statutes § 46b-71.

       A copy of the Lithuanian divorce certificate was appended as exhibit A to the defendant’s June 9, 2011 reply to the plaintiffs objection to the motion dismiss.

       The defendant appended a copy of the decision of the Lithuanian appellate court to his reply to the plaintiffs objection to the motion to dismiss. In addition, a copy of that decision, accompanied by a certification of translation signed before a notary public on June 24, 2011, by Marius Janu-saitis, was introduced without objection as an exhibit before the trial court on July 5, 2011.

       The complaint also requested, in the alternative, a “declaratory judgment that dissolution of the aforesaid marriage issued by the Lithuanian [cjourt is valid . . . .” On appeal, the plaintiff raises no claim regarding that request. Moreover, counsel for the plaintiff conceded at oral argument before this court that the request for declaratory relief was improper, as the trial court lacked authority to render the Lithuanian judgment invalid. Accordingly, we deem abandoned that claim for declaratory relief.

       At no point in the proceedings in the trial court did the plaintiff seek to amend her complaint.

       In granting comity to the judgment of dissolution rendered by the Lithuanian court, the trial court observed: “Notwithstanding the fact that this court will give full force and effect to the Lithuanian divorce decree, the plaintiff still has two options: (1) appear in Lithuanian court and file a motion to open and vacate the divorce decree in accordance with Lithuanian law; or (2) move to open and vacate the Lithuanian decree in this court pursuant to the rules of practice and statutes.”

       We emphasize that, in objecting to the motion to dismiss, the plaintiff failed to proffer counteraffidavits or evidence disputing the facts set forth in the defendant’s affidavit and the decision of the Lithuanian appellate court regarding the validity of the Lithuanian judgment of dissolution. Although she did file an affidavit approximately one week after the filing of the defendant’s affidavit, her affidavit does not reference — never mind discuss in any detail— either the proceeding before by the Kaunas City District Court that culminated with the entry of a judgment of dissolution on June 11, 2009, or the March 15, 2010 decision of the Lithuanian appellate court dismissing her appeal therefrom. To the contrary, the plaintiffs affidavit concerns only the ex parte divorce proceeding before the Supreme Court of New York. See footnote 1 of this opinion. The plaintiffs complaint, which alleges that the Lithuanian divorce decree was procured by fraud and duress on the part of the defendant, was filed in the Superior Court on December 8, 2010. Because the plaintiff in her affidavit filed June 17, 2011, avers that “[pjrior to April, 2011,1 was not aware of the existence of any divorce proceedings in the State of New York,” the New York divorce proceeding necessarily is immaterial to that December 8, 2010 allegation.
      Furthermore, it should not be forgotten that this is a dissolution of marriage action. Even if we assume arguendo that the New York divorce decree is indeed a valid judgment of dissolution that somehow calls into question the efficacy of the Lithuanian divorce decree, the trial court in the present case nevertheless would be without jurisdiction to entertain the plaintiffs dissolution action. See, e.g., Smith v. Smith, 174 Conn. 434, 436, 389 A.2d 756 (1978) (“[a] valid final judgment or decree of divorce entered by the New York court having jurisdiction to do so is entitled to full faith and credit”). We thus reject the plaintiffs ancillary contention that the court improperly declined to hold an evidentiary hearing on the validity of the New York divorce proceedings.


author: ALVORD, J.

text:
    WILLIAM ARNOLD v. CAROL MORIARTY ET AL.
    (AC 33928)
    Gruendel, Alvord and West, Js.

      Argued November 8, 2012
    officially released February 19, 2013

      Sydney T. Schulman, with whom, on the brief, was Alina Bricklin-Goldstein, for the appellant (plaintiff).

      Steven L. Seligman, for the appellee (named defendant).
   Opinion

ALVORD, J.

The plaintiff, William Arnold, appeals from the judgment of the trial court rendered in favor of the defendants, Carol Moriarty and James Moriarty, following a jury trial. On appeal, the plaintiff claims that the court improperly (1) directed a verdict in favor of the defendants, and (2) denied the plaintiffs motion to set aside the verdict. We disagree with the plaintiff and affirm the judgment of the trial court.

The following facts, which the jury could have reasonably found, and procedural history are relevant to the plaintiffs claims. On October 3, 2003, the plaintiff and the defendant were involved in a motor vehicle accident. The defendant’s vehicle was stopped behind the plaintiffs vehicle at a red traffic light in the far right lane of a three lane road. After the light turned green and the vehicles began moving, a vehicle from the middle lane of traffic merged into the right lane directly in front of the plaintiffs vehicle. The plaintiff applied his brakes, and, in response, the defendant applied her brakes, but the defendant’s vehicle struck the rear end of the plaintiffs vehicle. After the collision, both parties exited their vehicles and verbally confirmed that the other party was physically well. They then inspected the front of the defendant’s vehicle and the rear of the plaintiffs vehicle and concluded that both vehicles had suffered only minor damage. The parties exchanged insurance information and decided not to call the police.

The plaintiff filed a civil action against the defendants on October 11, 2005, alleging that, as a result of the defendant’s negligence in causing the accident, the plaintiff had suffered a cervical sprain, a thoracic sprain, a herniated disk and other injuries. In his operative complaint, the plaintiff alleged only bodily injury; no allegation of injury to property was pleaded. At the jury trial, both the plaintiff and the defendants presented evidence in the form of expert testimony and medical records pertaining to the issue of whether the defendant was negligent in causing the accident and whether the accident was the proximate cause of the plaintiffs injuries. Prior to the accident, the plaintiff had suffered a series of injuries to the same area of his body as where this accident allegedly injured him. In 1981, he was involved in a serious car accident that resulted in an injuiy to his torso. In 1991, while moving a six hundred pound desk as part of his employment responsibilities, he fell thirty feet and caused permanent damage to his lower back. In the winter between 2002 and 2003, he slipped on ice and fell on his back, suffering lumbar sprains on both sides of his spinal column. The jury heard conflicting expert testimony as to whether the accident with the defendant exacerbated the plaintiffs previous injuries. After the accident with the defendant, but prior to trial, the plaintiff suffered further medical problems, including pancreatitis that almost resulted in his death and a gunshot wound that hospitalized him for more than sixty days.

On September 16, 2011, the court granted the defendants’ oral motion for a directed verdict as to counts two through five of the amended complaint. Thereafter, on September 20, 2011, the jury returned a verdict for the plaintiff on count one, awarding zero economic damages and zero noneconomic damages. The judge then addressed the jury with the following instruction: “ [I]f it is your conclusion that the plaintiff has not established by a preponderance of the evidence his entitlement to damages in accordance with my instructions, then you should use the verdict for the defendant form. If it is your intention to award damages to the plaintiff, in accordance with my instructions, however you have found the facts in this case, then you would use the plaintiff form. But if . . . you do not intend to award damages to the plaintiff, I direct you then you should use the defendant’s verdict form. And I have no direction to you as to how you proceed. I am going to ask you to reconsider . . . the issues in accordance with this most recent instruction to you that I think clarifies things.”

The jury returned to the jury deliberation room and shortly thereafter sent a note to the court that read: “The jury believes that [the defendant] was negligent in the accident, but do not believe any monetary award is appropriate for the plaintiff. In this case, are we supposed to choose ‘Verdict For Defendant’ or ‘Verdict For Plaintiff? The Jury.” After the judge read the note aloud with the jury absent from the courtroom, the plaintiffs counsel stated: “I would argue, in that event, Your Honor, that they should choose the plaintiffs verdict.” The defendant’s counsel then opined: “I believe, Your Honor, it’s appropriate for you, at this point, to direct them to complete the defendant’s verdict form.” The judge returned the jury to the courtroom and again read the note from the jury aloud. He then stated: “[B]ased upon this request or question [from] you, and also based upon the prior form you filled out, I have come to the conclusion that I must direct you to complete the verdict for the defendant form.” The jury returned to the jury deliberation room and, upon returning to the courtroom, returned a verdict for the defendant.

The plaintiff filed a motion to set aside the verdict, requesting that “the Defendant’s Verdict directed by the Court be set aside and the Plaintiffs Verdict originally found by the Jury ... be reinstated. The reasons therefore include that the Jury could not have reasonably or appropriately found that zero damages should [have been] awarded. The directing of a Defendant’s Verdict precludes the plaintiff from making a claim for additur.” The court denied the motion. This appeal followed.

The plaintiff first claims that the court improperly directed a verdict for the defendant because the initial verdict for the plaintiff awarding zero damages was ambiguous, and the trial court should not have presumed to have known the basis for the jury’s determination. We disagree that the court directed a verdict and conclude that it properly instructed the jury and rendered a judgment in accordance with the jury verdict.

“When . . . the trial court concludes, as a matter of law, that it is compelled to act in a particular fashion, plenary review is appropriate.” (Internal quotation marks omitted.) Right v. Breen, 277 Conn. 364, 371, 890 A.2d 1287 (2006). In the present case, the jury initially returned a general verdict for the plaintiff awarding zero damages in a negligence cause of action. “[T]he essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury. . . . Without proof of each of these elements, a plaintiff s cause fails entirely, and he is not entitled to have the question of damages considered. This is because conduct that is merely negligent, without proof of an actual injury, is not considered to be a significant interference with the public interest such that there is any right to complain of it, or to be free from it.” (Citation omitted; internal quotation marks omitted.) Id., 377. “If actual damage is necessary to the cause of action, as in negligence, nominal damages are not awarded.” 4 Restatement (Second), Torts § 907, comment (a), p. 462 (1979).

Pursuant to Right, a jury verdict for a plaintiff awarding zero damages in a cause of action sounding in negligence is ambiguous because it is inherently inconsistent to state, on the same verdict form, that a plaintiff has prevailed in proving the cause of action while simultaneously stating that the plaintiff has not proven an element of the cause of action. In this case, the initial verdict returned by the jury was inconsistent because the verdict form indicated a verdict for the plaintiff while determining that the plaintiff had not proven damages— an essential element of a negligence cause of action. The court recognized this ambiguity and properly reins-tructed the jury and returned it for further deliberations. See Ferris v. Hotel Pick Arms, Inc., 147 Conn. 72, 75, 157 A.2d 106 (1959) (when confronted with jury verdict that is inconsistent or ambiguous as to jury’s intent court “should . . . [direct] the jury, with appropriate instructions, to retire and reconsider the verdict”); see also Practice Book § 16-17. After returning to the deliberation room, the jury sent a note indicating it did not intend to award the plaintiff any damages and inquiring whether it should use a form indicating a verdict for the defendant or a form indicating a verdict for the plaintiff. For the second time, the jury had stated its determination that the plaintiff had failed to prove damages. The court then properly issued an instruction to use the verdict for the defendant form because of its determination that, as a matter of law, the plaintiff had not met his burden of proving each of the elements of a negligence cause of action by a preponderance of the evidence.

The plaintiff next claims that the trial court improperly denied the plaintiffs motion to set aside the verdict because a jury could not reasonably have found zero damages were appropriate. “[T]he role of the trial court on a motion to set aside the jury’s verdict is not to sit as a seventh juror, but, rather, to decide whether, viewing the evidence in the light most favorable to the prevailing party, the jury could reasonably have reached the verdict that it did. ... A verdict is not defective as a matter of law as long as it contains an intelligible finding so that its meaning is clear. ... A verdict will be deemed intelligible if it clearly manifests the intent of the jury. ... hi reviewing the action of the trial court in denying the motions ... to set aside the verdict, our primary concern is to determine whether the court abused its discretion and we decide only whether, on the evidence presented, the jury could fairly reach the verdict [it] did.” (Citations omitted; internal quotation marks omitted.) Froom Development Corp. v. Developers Realty, Inc., 114 Conn. App. 618, 632, 972 A.2d 239, cert. denied, 293 Conn. 922, 980 A.2d 909 (2009).

“[Although it is understandable that the [trial] court wanted to evaluate everything before it [in] deciding the motion to set aside the verdict, the court, in so doing, effectively considered an aspect of the jury’s deliberations. . . . Consequently, the trial court was not free to consult the original verdict forms in determining whether to grant [a motion to set aside the verdict].” (Internal quotation marks omitted.) Hall v. Bergman, 296 Conn. 169, 180, 994 A.2d 666 (2010).

In this case, the court was asked to set aside the jury verdict for the defendant. Based on our review of the evidence at trial, the jury could have fairly and reasonably reached a verdict for the defendant. Both the plaintiff and the defendant presented an expert witness to explain whether the accident in question affected the plaintiffs previous back problems. It is not our position to dictate which witnesses the jury should credit; “[t]he trier [is] free to accept or reject, in whole or in part, the testimony offered by either party.” (Internal quotation marks omitted.) Mierzejewski v. Brownell, 102 Conn. App. 413, 422, 925 A.2d 1126, cert. denied, 284 Conn. 917, 931 A.2d 936 (2007). Further, it is not unreasonable for a jury to determine that a plaintiff has proved some elements of his or her cause of action without proving them all; see Macy v. Lucas, 72 Conn. App. 142, 150-51, 804 A.2d 971, cert. denied, 262 Conn. 905, 810 A.2d 272 (2002); and in such a situation a defendant’s verdict is proper. See Carano v. Moomey, 51 Conn. App. 382, 389, 721 A.2d 1240 (1998) (“[t]o prove a claim of negligence, the plaintiff must prove by a preponderance of the evidence each of the elements: duty, breach, proximate cause and damages”); see also Right v. Breen, supra, 277 Conn. 377 (remanding case to trial court to render judgment for defendant when plaintiff failed to prove damages). The verdict of the jury was reasonable, and the court, therefore, did not abuse its discretion in denying the plaintiffs motion to set aside the verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

       Because the defendant James Moriarty is not a party to this appeal, we refer in this opinion to Carol Moriarty as the defendant.

       The plaintiff also claims that the jury could not reasonably or appropriately have found that zero damages should have been awarded to the plaintiff. Because that claim is inextricably intertwined with the plaintiffs claim that the court improperly denied the plaintiffs motion to set aside the verdict, we review them together.

       The plaintiff filed a five count amended complaint on April 4, 2007, against Carol Moriarty for negligence in the operation of her vehicle and James Moriarty for vicarious liability as the owner of the vehicle.

       General Statutes § 52-216 provides in relevant part: “The court shall decide all issues of law and all questions of law arising in the trial of any issue of fact; and, in committing the action to the jury, shall direct them to find accordingly. The court shall submit all questions of fact to the jury, with such observations on the evidence, for their information, as it thinks proper, without any direction as to how they shall find the facts. ...” A directed verdict, however, is “[a] judgment entered on the order of a trial judge who takes over the fact-finding role of the jury because the evidence is so compelling that only one decision can reasonably follow or because it fails to establish a prima facie case.” Black’s Law Dictionary (7th Ed. 1999). “A trial court has the inherent power to grant a directed verdict sua sponte, if it determines that reasonable minds could come to but one conclusion upon the evidence submitted.” 75A Am. Jur. 2d 421, Trial § 783 (2007). In this case, the court did not take over the fact-finding role of the jury or make a determination based on evidence. Rather, a review of the record reveals that the court instructed the jury as to the proper form on which to transcribe its verdict while specifically refraining from making any factual determinations based on the evidence.

       “The judicial authority may, if it determines that the jury has mistaken the evidence in the cause and has brought in a verdict contrary to it, or has brought in a verdict contrary to the direction of the judicial authority in a matter of law, return the jury to a second consideration, and for like reason may return it to a third consideration, and no more. . . .” (Citation omitted.) Practice Book § 16-17.


author: Per Curiam.

text:
    STATE OF CONNECTICUT v. JOHN MCGOWAN
    (AC 34074)
    DiPentima, C. J., and Beach and Sheldon, Js.
    Argued December 12, 2012
    officially released January 8, 2013
   Per Curiam.

The judgment is affirmed.


text:
    LAKISHA CARPENTER-SCHATZMAN v. MATTHEW A. SCHATZMAN
    (AC 34247)
    Beach, Sheldon and Flynn, Js.
    Argued November 26, 2012
    officially released January 8, 2013
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. MARK SEBASTIAN
    (AC 32477)
    DiPentima, C. J., and Robinson and Lavery, Js.
    Argued January 2
    officially released January 22, 2013
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. BILLY G. HUNT
    (AC 33871)
    Lavine, Robinson and Borden, Js.
    Argued January 9
    officially released February 5, 2013
   Per Curiam.

The judgment is affirmed.


text:
    DONALD BEAULIEU v. COMMISSIONER OF CORRECTION
    (AC 33705)
    Beach, Robinson and Sheldon, Js.
    Submitted on briefs January 11
    officially released February 5, 2013
   Per Curiam.

The appeal is dismissed.


text:
    GREEN TREE SERVICING, LLC v. DIL ARA BEGUM
    (AC 34380)
    Beach, Bear and Sheldon, Js.
    Submitted on briefs January 11
    officially released February 5, 2013
   Per Curiam.

The judgment is affirmed and the case is remanded for the purpose of setting a new law day.


text:
    TOWN OF WINDHAM v. EUGENE ARSENAULT ET AL.
    (AC 34509)
    Lavine, Alvord and Foti, Js.
    Argued December 4, 2012
    officially released February 5, 2013
   Per Curiam.

The judgment is affirmed and the case is remanded for the purpose of setting a new sale date.


text:
    CARLOS GARCIA v. COMMISSIONER OF CORRECTION
    (AC 33791)
    Lavine, Robinson and Bear, Js.
    Submitted on briefs January 11
    officially released February 12, 2013
   Per Curiam.

The appeal is dismissed.


text:
    COREY WILLIAMS v. COMMISSIONER OF CORRECTION
    (AC 33107)
    Lavine, Robinson and Bear, Js.
    Submitted on briefs January 11
    officially released February 12, 2013
   Per Curiam.

The appeal is dismissed.


text:
    RAFAEL ABREU v. COMMISSIONER OF CORRECTION
    (AC 33905)
    Lavine, Robinson and Bear, Js.
    Submitted on briefs January 11
    officially released February 12, 2013
   Per Curiam.

The appeal is dismissed.


text:
    FPJ INVESTMENTS, LLC v. ANTHONY BORRELLI, JR., ET AL.
    (AC 34460)
    DiPentima, C. J., and Beach and Bear, Js.
    Argued January 22
    officially released February 12, 2013
   Per Curiam.

The judgment is affirmed.


text:
    NELSON COLON v. COMMISSIONER OF CORRECTION
    (AC 33466)
    Beach, Sheldon and Bishop, Js.
    Argued January 16
    officially released February 12, 2013
   Per Curiam.

The appeal is dismissed.


text:
    JOSEPH ANCONA v. COMMISSIONER OF CORRECTION
    (AC 33677)
    Lavine, Beach and Sheldon, Js.
    Submitted on briefs January 11
    officially released February 12, 2013
   Per Curiam.

The appeal is dismissed.


text:
    JUANA TORRES-SOTELO v. MACKEYBOY AUTO, LLC, ET AL.
    (AC 34370)
    DiPentima, C. J., and Gruendel and Alvord, Js.
    Submitted on briefs January 11
    officially released February 12, 2013
   Per Curiam.

The judgment is affirmed.


author: LAVINE, J.

text:
    STATE OF CONNECTICUT v. VERNON ABREU
    (AC 33405)
    Lavine, Robinson and Pellegrino, Js.
    Argued November 27, 2012
    officially released February 19, 2013

      Christopher Y Duby, appointed counsel, for the appellant (defendant).

      Theresa Anne Ferryman, senior assistant state’s attorney, with whom, on the brief, was Michael L. Regan, state’s attorney, for the appellee (state).
   Opinion

LAVINE, J.

The defendant, Vernon Abreu, appeals from the judgment of conviction, rendered after a jury trial, of one count of risk of injury to or impairing the morals of a child in violation of General Statutes § 53-21 (a) (2) and one count of delivering alcohol to a minor in violation of General Statutes § 30-86 (b) (2). On appeal, the defendant claims that there was insufficient evidence to support his conviction of risk of injury to a child as the jury found him not guilty of two counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1). We affirm the judgment of the trial court.

The jury reasonably could have found the following facts beyond a reasonable doubt on the basis of the victim’s testimony. On September 1, 2008, Labor Day, the defendant went to the home of his former sister-in-law and her husband in Mystic. He informed them that he was on the way to the beách and invited the couple’s older daughter, the victim, to join him. The victim, who was thirteen years old at the time, asked if one of her girlfriends could join them. The defendant agreed and drove the two girls to his apartment in Pawcatuck, where they changed into their bathing suits. The defendant then drove the girls to Misquamicut Beach in Rhode Island, where the girls spent the afternoon swimming, while the defendant sat on a chair on the beach. At approximately 4 p.m., the defendant and the girls left the beach. During the drive back to Connecticut, the defendant stopped at a package store in Westerly, Rhode Island, and purchased a six-pack of beer. The defendant took the victim’s Mend home and then invited the victim to come to his apartment. The victim used her cellular telephone to ask her mother if it was all right to go to the defendant’s apartment. The victim’s mother gave her permission to do so.

When the victim and the defendant arrived at his apartment, they sat on the couch and the defendant offered the victim a beer. The victim took several sips of beer. The defendant pointed out that the victim was sunburned and offered to put lotion on the sunburn; the victim agreed. After the defendant retrieved some Neutrogena lotion from his bathroom, he applied it to the victim’s back while she was lying on her stomach. The defendant untied the top of the victim’s two-piece bathing suit and asked the victim to turn onto her back. The defendant then applied lotion to the victim’s stomach and legs. While he rubbed the victim’s stomach, he slipped his hand into the bottom of the victim’s bathing suit and continued to rub lotion on her. The victim turned back onto her stomach, and the defendant attempted to remove the bottom of her bathing suit. The victim resisted the defendant’s attempt to remove the bottom of her bathing suit, but the defendant was able to remove it and throw it aside. According to the victim, the defendant licked her, including her vagina and put his finger into her vagina. The victim only was able to feel what the defendant was doing as she was lying face down on the couch. The defendant told the victim that he loved her and that she was beautiful. The defendant continued touching the victim for approximately fifteen minutes until the victim reminded him to get the pizza he had ordered.

While the defendant was applying lotion to the victim, she asked the defendant to hand her her cellular telephone, which was on the coffee table. The defendant gave her the cellular phone and the victim sent a text message to her best friend. The victim continued to send and to receive text messages for approximately one-half hour. The victim also exchanged a text message with her mother regarding the time the victim was to return home, but she did not mention the lotion incident.

After the defendant and victim ate pizza, the defendant took the victim home. When the victim got home, she ran to her room. Her mother came into the victim’s bedroom and asked why the victim was upset. Without providing details, the victim told her mother that the defendant had touched her. The victim’s father telephoned the police, who responded to her home that evening. That evening, before speaking with the police, the victim told several of her friends about the lotion incident. The following day, September 2, 2008, the victim gave a statement to Timothy Marley, a Stonington police department youth officer. As part of the police investigation, the victim was examined at the emergency department of Lawrence and Memorial Hospital in New London.

Subsequent to the police investigation, the defendant was arrested and charged in a substitute information. In count one, the defendant was alleged to have engaged in sexual intercourse with a person thirteen years of age or older, but under sixteen years of age, by engaging in digital-vaginal intercourse with a minor female and that he was more than three years older than she in violation of § 53a-71 (a) (1). In count two, the defendant was alleged to have engaged in sexual intercourse with a person thirteen years of age or older, but under sixteen years of age, by engaging in cunnilingus with a minor female and that he was more than three years older than she in violation of § 53a-71 (a) (1). In count three, the defendant was alleged to have committed the crime of risk of injury to or impairing the morals of a child in that he had contact with the intimate parts of a child under the age of sixteen years in a sexual and indecent manner likely to impair the health and morals of such child in violation of § 53-21 (a) (2). The defendant was tried to a jury in late September and early October, 2010. The defendant was sentenced to fifteen years in prison, execution suspended after seven years, followed by ten years of probation. The defendant appealed.

On appeal, the defendant claims that because he was found not guilty of the two counts of sexual assault in the second degree, there was insufficient evidence to support his conviction of risk of injury to a child. More specifically, the defendant claims that, by operation of law, “there must be insufficient evidence to find that the defendant risked injury to a minor by sexually touching her when the same jury found that he did not do so.” The state argues that tire defendant’s claim is not one of insufficient evidence, but one of inconsistent verdicts, which is not a reviewable claim. See State v. Arroyo, 292 Conn. 558, 585-86, 973 A.2d 1254 (2009), cert. denied, 559 U.S. 911, 130 S. Ct. 1296, 175 L. Ed. 2d 1086 (2010). We disagree with the state’s position that the defendant’s claim is one of inconsistent verdicts. The crime of sexual assault in the second degree, as alleged in counts one and two of the substitute information, and the crime of risk of injury to a child, as alleged in count three, contain elements that the other does not. Moreover, the defendant appears to have conflated the elements of sexual intercourse and contact with the intimate parts of the separate crimes with which the defendant was charged. We therefore review the defendant’s claim as one of insufficient evidence.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the fight most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“While the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, 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. Nelson, 118 Conn. App. 831, 847, 986 A.2d 311, cert. denied, 295 Conn. 911, 989 A.2d 1074 (2010).

The record discloses that the court charged the jury as to count one in relevant part as follows: “The first essential element [of sexual assault in the second degree] is engaging in sexual intercourse with another person. Insofar as it is relevant to the first count, the term ‘sexual intercourse’ means vaginal sexual intercourse between persons not married to each other. Penetration, however slight, is sufficient to complete vaginal sexual intercourse and does not require emission of semen. Penetration may be committed by an object manipulated by the actor into the genital opening of the alleged victim’s body. Here, the state alleges vaginal intercourse by way of digital penetration. Object would include a finger or fingers. Penetration may be committed digitally, that is by the finger or fingers into the genital opening of the alleged victim.

“The term ‘genitals’ refers to the external reproductive organs which include on a female labia majora. The term opening means something that is unfolded or spread out. And labia majora are folds. Thus, the opening between the folds, i.e., the labia majora, is the genital opening, and the labia majora form the boundaries of the genital opening. Here, digital penetration, however slight, of the labia majora is sufficient penetration to constitute vaginal sexual intercourse.”

As to count two, the court charged in relevant part: “Insofar as it is relevant to this second count, the term ‘sexual intercourse’ means cunnilingus. ‘Cunnilingus’ is defined as the stimulation of the vulva or clitoris with the lips or tongue of the actor and penetration is not required where cunnilingus is alleged. Again, vulva is the external genital organs of the female. Clitoris is the small elongated erectile organ at the front part of the vulva.”

As to count three, the court charged in relevant part: “To find the defendant guilty of [violating § 53-21 (a) (2)], the state must prove each of the following essential elements beyond a reasonable doubt .... Two, the defendant had contact with an intimate part of [the victim]. Three, the contact with the intimate part took place in a sexual and indecent maimer. And four, the contact, which was sexual and indecent, was likely to impair the health or morals of [the victim]. . . .

“Here intimate part means [the victim’s] genital area. Genitals refer to the external reproductive organs, which include on the female the labia majora. The labia majora are defined as the two prominent mounds of tissue forming the lateral boundaries of the vulva. The vulva is the external female genitalia. . . . Contact means of the intimate part as claimed and would include touching over or under her clothing. . . . [T]he state must prove that the contact with the intimate part took place in a sexual and indecent manner, which was likely to impair the health or moral of the child. The contact with the intimate part must have taken place in a sexual or indecent manner as opposed to an innocent touching or an accidental, inadvertent or reflexive touching. Sexual means having to do with sex, and indecent means offensive to good taste or public morals.”

The jury found the defendant not guilty of sexual assault in the second degree and guilty of risk of injury to a child. Our review of the evidence demonstrates that the victim’s testimony provided sufficient evidence by which the jury reasonably could have found beyond a reasonable doubt that the defendant touched the victim’s intimate parts in a sexual and indecent manner but that he did not engage in sexual intercourse with the victim as alleged in the sexual assault charges. Cf. State v. Morales, 78 Conn. App. 25, 35, 826 A.2d 217, cert. denied, 266 Conn. 901, 832 A.2d 67 (2003). We may not second guess a jury’s credibility determinations. See State v. Russell, 101 Conn. App. 298, 316, 922 A.2d 191, cert. denied, 284 Conn. 910, 931 A.2d 934 (2007).

The judgment is affirmed.

In this opinion the other judges concurred.

       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.

       The defendant also was charged with and convicted of giving alcohol to a person under the age of twenty-one in violation of § 30-86 (b) (2). That conviction is not at issue in this appeal.

       After the state presented its case-in-chief, the defendant offered an oral motion for a judgment of acquittal, which was denied by the court.

       In State v. Morales, 78 Conn. App. 25, 30-32, 826 A.2d 217, cert. denied, 266 Conn. 901, 832 A.2d 67 (2003), the court held that verdicts finding the defendant in that case not guilty of sexual assault in the first degree but guilty of risk of injury to a child were not legally inconsistent. The necessary elements of the crimes were distinct in that sexual assault in the first degree requires a finding that a defendant engaged in sexual intercourse with the victim and risk of injury to a child requires a finding that a defendant had contact with the intimate parts of the victim. Id., 35.

       General Statutes § 53a-71 (a) provides in relevant part: “A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and: (1) Such other person is thirteen years of age or older but under sixteen years of age and the actor is more than three years older than such other person . . . .”

       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 or subjects a child under sixteen years of age to contact with the intimate parts of such person, 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 . . . .”

       General Statutes § 53a-65 (2) provides in relevant part: “ ‘Sexual intercourse’ means vaginal intercourse, anal intercourse, fellatio or cunnilingus between person regardless of sex. Its meaning is limited to persons not married to each other. Penetration, however slight, is sufficient to complete vaginal intercourse ... or fellatio and does not require emission of semen. Penetration may be committed by an object manipulated by the actor into the genital or anal opening of the victim’s body.”

       General Statutes § 53a-65 (8) provides: “ ‘Intimate parts’ means the genital area or any substance emitted therefrom, groin, anus or any substance emitted therefrom, inner thighs, buttocks or breasts.”


author: PER CURIAM.

text:
    JAMES A. HARNAGE ET AL. v. COMMISSIONER OF CORRECTION ET AL.
    (AC 34291)
    DiPentima, C. X, and Bear and Espinosa, Js.

      Argued December 7, 2012
    officially released February 19, 2013

      James A. Hamage, pro se, the appellant (named plaintiff).

      Madeline A. Melchionne, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and TerrenceM. O'Neil, assistant attorney general, for the appellees (named defendant et al.).
   Opinion

PER CURIAM.

The self-represented plaintiff James A. Hamage appeals from the decision of the trial court denying his motion for partial summary judgment and granting, in part, the defendants’ cross motion for partial summary judgment. On appeal, the plaintiff raised several claims. We do not reach the merits of any of these claims because the decision from which the plaintiff appeals was not a final judgment. Accordingly, we dismiss the appeal.

The following brief procedural history is relevant to our resolution of this appeal. On March 9, 2010, the plaintiff filed a seven count complaint against the defendants seeking monetary and injunctive relief. In count one, the plaintiff alleged that, in June, 2008, while housed as an inmate at Corrigan-RadgowskL Correctional Center, he was subject to “an unreasonable policy of [correctional officers] performing blanket strip body cavity searches . . . despite any consideration for [his] charges and absent any suspicion that [he was] carrying contraband” and without any effort to conduct the searches in a private setting. (Internal quotation marks omitted.) In count two, the plaintiff alleged that the blanket policy of performing strip body cavity searches was unconstitutional, went beyond admissions processing procedures and was conducted in a location and manner that allowed other inmates and correctional officers to view them.

In count three, the plaintiff alleged that he improperly was forced to eat all of his meals in his cell. In count four, the plaintiff alleged that he was not given enough time to eat his meals in contradiction of the department of correction’s administrative directives that set forth the minimum time that inmates must be given to eat their meals. In count five, the plaintiff made allegations against the former claims commissioner, James R. Smith, which have since been dismissed from this action. In count six, the plaintiff alleged that Officer Wales retaliated against him for filing the present action by issuing a disciplinary report for the plaintiff’s possession of a “stinger.” In count seven, the plaintiff alleged that the strip search conducted after the officers found the “stinger” was unlawful.

On May 6, 2011, the plaintiff filed a motion for partial summary judgment claiming that there were no genuine issues of material fact regarding the alleged unconstitutional strip searches conducted by the defendants as described in counts one and two of the complaint. On October 3, 2011, the defendants filed an objection to the plaintiffs motion and filed a cross motion for partial summary judgment.

In a January 23, 2012 memorandum of decision, the court denied the plaintiffs motion for partial summary judgment in its entirety, finding there to be genuine issues of material fact regarding the plaintiffs claims. In the same memorandum, the court granted, in part, the defendants’ cross motion, on the ground of sovereign immunity, as it related to the plaintiffs claim for monetary damages. The court denied the remaining portion of the defendants’ cross motion that related to the plaintiffs claim for injunctive relief. Because the parties did not brief the issues raised in counts three through seven of the plaintiffs complaint, the court declined to address their merits in its decision. The present appeal followed.

As noted previously, we do not reach the merits of the plaintiffs claims because, as the defendants correctly argue, the decision from which the plaintiff appeals was not a final judgment. “The lack of [a] final judgment . . . implicates the subject matter jurisdiction of this court. ... If there is no final judgment, we cannot reach the merits of the appeal. . . . Under Connecticut law, [t]he denial of a motion for summary judgment ordinarily is an interlocutory ruling and, accordingly, not a final judgment for purposes of appeal.” (Citation omitted; internal quotation marks omitted.) Singhaviroj v. Board of Education, 124 Conn. App. 228, 231-32, 4 A.3d 851 (2010). “An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). “A judgment that disposes of only a part of a complaint is not a final judgment”; (internal quotation marks omitted) Psaki v. Karlton, 97 Conn. App. 64, 69, 903 A.2d 224 (2006); unless “the partial judgment disposes of all causes of action against a particular party or parties; see Practice Book § 61-3; or if the trial court makes a written determination regarding the significance of the issues resolved by the judgment and the chief justice or chief judge of the court having appellate jurisdiction concurs. See Practice Book § 61-4 (a).” (Internal quotation marks omitted.) Psaki v. Karlton, supra, 69.

Here, the court’s decision, granting, in part, the defendants’ cross motion for partial summary judgment, disposed of only part of the plaintiffs complaint, namely, his claim for monetary damages set forth in counts one and two. The plaintiffs claims for injunctive relief contained in counts one and two were unaffected by the court’s decision and remain pending before the court. Likewise, the claims contained in counts three, four, six and seven were not addressed by the court in its decision and remain pending. Further, the court’s decision did not dispose of all causes of action against a particular party nor did the court make the requisite determinations to trigger the exceptions set forth in Practice Book §§ 61-3 and 61-4 (a). As such, the court’s decision was not an appealable final judgment.

The plaintiffs appeal from the court’s denial of his entire motion for partial summary judgment, due to the existence of genuine issues of material fact, also fails because the court’s decision did not constitute a final judgment. The plaintiff has not shown that the court’s decision has so concluded the rights of the parties that further proceedings cannot affect them. The claims addressed in the plaintiffs motion for partial summary judgment remain pending and the rights of the parties to which they correspond still can be affected by a trial on the merits of the plaintiffs case. Accordingly, the court’s decision was not an appealable final judgment.

The appeal is dismissed.

       In the caption of his complaint, in addition to his own name, Hamage listed “a class of similarly situated persons” as plaintiffs to this action. In this regard, the court found that Hamage failed to comply with the necessary prerequisites to bringing a class action set forth in the rules of practice and that he could not represent the interests of other inmates as a nonattomey. We agree with the court and, accordingly, evaluate this appeal only as it pertains to Hamage. Hereafter, we refer to Hamage as the plaintiff.

       The named defendants are Brian K. Murphy, the former commissioner of correction; Warden Anthony Colletti; Lieutenants Meyers, Ploscynski, Kmetz, Williams and Brehler; Correction Officers Peck, Iozio, Leszniewski, Johnson, Delaney, Cronin, Wales, Holmes, Fulcher, DiLoreto, Schwegoffer, Lonton and Perkins; and James R. Smith, the former claims commissioner of Connecticut. On June 7, 2011, a motion to dismiss was granted in favor of Smith, and, thus, he is not a party to this appeal. Therefore, with the exception of Smith, in this opinion, we refer to the aforementioned individuals collectively as the defendants.

       The plaintiff claims that the court erred by (1) failing to consider state and federal sovereign immunity defenses separately, (2) failing to consider or analyze General Statutes § 4-165, (3) finding that sovereign immunity applied with respect to the plaintiffs claim that his federal constitutional rights were violated, (4) failing to find that the defendants acted in a wanton, reckless and/or malicious manner in their individual capacities, (5) finding a genuine issue of material fact by improperly relying on affidavits from individuals without personal knowledge of the facts and (6) finding no merit in the plaintiffs claim that a strip search must be based on a reasonable suspicion.

       In his complaint, the plaintiff described a “stinger” as an item “used by inmates to heat hot water for soups and coffee.”