source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    MICHAEL SWEENEY v. FRIENDS OF HAMMONASSET ET AL.
    (AC 34048)
    Lavine, Robinson and Sheldon, Js.

      Submitted on briefs September 17, 2012
    officially released January 1, 2013

      Bruce A. Chaplin filed a brief for the appellant (plaintiff).

      Thomas M. Noniewicz filed a brief for the appel-lees (defendants).
   Opinion

ROBINSON, J.

The plaintiff, Michael Sweeney, appeals from the judgment of the trial court rendering summary judgment in favor of the defendants, the Friends of Hammonasset (Friends) and Deanna Becker. The plaintiff claims that the court concluded improperly that (1) the theory of liability set forth in his complaint sounded in premises liability, on which he could not prevail as a matter of law because the defendants did not control the premises on which he fell and was injured, and (2) General Statutes § 52-557m applies to provide Becker with statutory immunity from the plaintiffs claims against her in her capacity as president of Friends. We affirm the judgment of the trial court.

The following undisputed facts are relevant to our consideration of this appeal. Friends is a nonprofit volunteer organization under 26 U.S.C. § 501 (c) (3) that works with Hammonasset Beach State Park (park), a park owned and operated by the state. Becker is the president of Friends and has been at all relevant times. She is a volunteer who is not compensated for her services.

An annual event, the “Owl Prowl,” was held at the park on the evening of January 8, 2010. Friends was invited to participate in the event and handled all the publicity for it. Members of Friends also provided support for the event by greeting, signing in and organizing visitors. The event was not organized by Friends, however, but instead by the Meigs Point Nature Center (nature center), which is under the jurisdiction of the department of environmental protection. Friends could not sponsor or host the event because it neither applied for nor received a special use permit from the state, which is required in order to sponsor such an event.

The program, designed by the nature center, included four stations within the nature center where people could learn about owls and take a guided walk on Willard Island, with Friends volunteers providing interpretation. At no time on the evening of January 8, 2010, did Friends control or direct where the public was allowed to walk, nor did it have possession or control of the park. Maintenance of the premises where the event was held was the responsibility of the state.

The plaintiff learned about the event on January 7, 2010, through an article in the local newspaper for the towns of Madison and Killingworth. The article invited readers to “[c]ome, see, hear, and learn about owls during the [Friends] annual Owl Prowl on Friday, [January 8, 2010] at 6:30 p.m.” It noted that “[a]fter the brief presentation, several Friends volunteers will lead tours out to Willard Island . . . .”

The plaintiff, accompanied by his wife and grandson, attended the event on January 8, 2010. After viewing the stations inside the nature center, the plaintiff went into a room and waited for his torn- of Willard Island. At some point, a Friends volunteer, Shannon Schiesser, came outside, said that they were all set, and the group walked outside. While the group that included the plaintiff was walking on the driveway road, the plaintiff slipped and fell. The plaintiff got up and immediately went to the Shoreline Emergency Room (clinic) in Guil-ford because he believed that his wrist was broken. The clinic referred him to Yale-New Haven Hospital that evening because the break was so severe.

The plaintiff filed a two count, second amended complaint on February 24,2011. The first count was brought against both defendants. The second count was brought against Becker only. The defendants filed a motion for summary judgment on January 21, 2011, arguing that they did not have control or possession of the premises where the plaintiff fell and that Becker had immunity pursuant to § 52-557m. The court granted the motion on November 9, 2011. This appeal followed.

As a threshold matter, we set forth the applicable standard of review. “Summary judgment shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. . . . When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Wilton Meadows Ltd. Partnership v. Coratolo, 299 Conn. 819, 823, 14 A.3d 982 (2011).

I

The plaintiff first argues that the court improperly granted the defendants’ motion for summary judgment as to count one of his second amended complaint because it improperly construed that count as sounding in premises liability and failed to recognize that the plaintiffs second amended complaint sounded in ordinary negligence or negligence under 2 Restatement (Second), Torts § 324 A (1965), and that there was evidence to support the cause of action. We are unpersuaded.

First, we must determine whether the court properly construed the allegations of the plaintiffs second amended complaint. Count one of the second amended complaint is not labeled. The plaintiff alleges therein that he was invited to the park by Friends on January 8, 2010, and that as a visitor/invitee of the defendants, he fell on ice. He further alleges that the icy conditions had existed for an unreasonable length of time, and “further it was the mode of operations for ‘Friends’ to conduct nature walks.” As a result of the “dangerous and unsafe icy conditions of the walking area,” the plaintiff was caused to suffer injuries and losses. Furthermore, the defendants were negligent in that they: (1) failed to provide a reasonably safe walking area; (2) failed to place signs or otherwise warn of the icy conditions; (3) failed to exercise a reasonable inspection to make it safe for visitors; (4) failed to take proper measures to remedy and correct the condition; and (5) knew or should have known that the area was icy.

In their memorandum of law in support of their motion for summary judgment, the defendants addressed the plaintiffs allegations as asserting a claim of negligence under a theory of premises liability. The plaintiff responded in his objection to the motion that the defendants’ conduct was sufficient to support a cause of action sounding in ordinary negligence or negligence under 2 Restatement (Second), supra, § 324 A, p. 142.

“ [T]he interpretation of pleadings is always a question of law for the court .... Our review of the trial court’s interpretation of the pleadings therefore is plenary. . . . Whenever [the] language [of the pleadings] fails to define clearly the issues in dispute, the court will put upon it such reasonable construction as will give effect to the pleadings in conformity with the general theory which it was intended to follow, and do substantial justice between the parties.” (Citation omitted; internal quotation marks omitted.) Petitte v. DSL.net, Inc., 102 Conn. App. 363, 374-75, 925 A.2d 457 (2007).

“The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury.” (Internal quotation marks omitted.) Mills v. The Solution, LLC, 138 Conn. App. 40, 59, 50 A.3d 381 (2012). “[T]he existence of a duty of care is a prerequisite to a finding of negligence .... The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant [breached] that duty in the particular situation at hand. ... If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant.” (Citation omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 538-39, 51 A.3d 367 (2012).

Our Supreme Court has stated that under a theory of ordinary negligence, “the test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant’s position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant’s responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case. . . . Additionally, [a] duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act.” (Citation omitted; internal quotation marks omitted.) Id., 539. “[T]here generally is no duty that obligates one party to aid or to protect another party. . . . One exception to this general rule arises when a definite relationship between the parties is of such a character that public policy justifies the imposition of a duty to aid or to protect another. . . . In delineating more precisely the parameters of this limited exception to the general rule, this court has concluded that, [in the absence of] a special relationship of custody or control, there is no duty to protect a third person . . . .” (Internal quotation marks omitted.) Id., 539-40.

Additionally, duty can be found under circumstances described in 2 Restatement (Second), supra, § 324 A. Section 324 A provides: “One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.”

There is also a duty under a theory of premises liability. In premises liability, “[t]he law is clear that [a] possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe. ... In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover.” (Internal quotation marks omitted.) Mills v. The Solution, LLC, supra, 138 Conn. App. 59.

Reading the complaint in its entirety, the allegations of negligence pertain to the alleged failure of the defendants either reasonably to inspect and maintain the defective premises in order to render them reasonably safe or to warn of dangers that the plaintiff, as an invitee of the defendants, could not reasonably be expected to discover. Though these allegations are not inconsistent with a duty under a theory of ordinary negligence, the gravamen of the plaintiffs complaint pertains to the “dangerous and unsafe icy conditions of the walking axea . . . .” See Petitte v. DSL.net, Inc., supra, 102 Conn. App. 376 n.3.

Section 324 A does not apply because, as the trial court aptly noted, the “plaintiff in the present action does not allege that the defendants owed him a duty based upon their arrangement with a third party to render certain services.” Rather, he alleges that the defendants owed him a duty based on the services that were rendered to him, as an invitee on the premises. As the plaintiffs allegations stem from an injury caused by a dangerous condition on the premises, liability is dependent on possession and control of the dangerous premises. See LaFlamme v. Dallessio, 261 Conn. 247, 251, 802 A.2d 63 (2002) (“[liability for injuries caused by defective premises . . . does not depend on who holds legal title, but rather on who has possession and control of the property”). Accordingly, the court correctly determined that the negligence alleged in count one of the second amended complaint is founded on a theory of premises liability, rather than general negligence.

Next, we must examine whether, when viewing the evidence in the light most favorable to the plaintiff, the defendants were entitled to summary judgment on the plaintiffs premises liability claim. The court concluded that, as a matter of law, the defendants could not be found negligent because they did not have possession or control of the premises. We agree with the court.

In support of their motion for summary judgment, the defendants submitted affidavits from Russ Miller, the director of the nature center, and Don Rankin, a volunteer of Friends, both of whom attested that Friends neither organized nor was responsible for the event and that the defendants did not have possession or control of the nature center or any of the premises used for the event. Miller further averred that Friends could not host the event because it had not applied for or been granted a special permit for that purpose by the state, and that maintenance of the premises where the event was held was the responsibility of the state.

“Liability for injuries caused by defective premises . . . does not depend on who holds legal title, but rather on who has possession and control of the property.” LaFlamme v. Dallessio, supra, 261 Conn. 251. “Thus, the dispositive issue in deciding whether a duty exists is whether the [defendant] has any right to possession and control of the property. . . . Retention of control is essentially a matter of intention to be determined in the light of all the significant circumstances. . . . The word control has no legal or technical meaning distinct from that given in its popular acceptation . . . and refers to the power or authority to manage, superintend, direct or oversee.” (Citation omitted; internal quotation marks omitted.) Mills v. The Solution, LLC, supra, 138 Conn. App. 60.

In the present case, the defendants provided two affidavits to support their argument that they did not have control or possession of the premises. The plaintiff did not provide any evidence to refute the defendants’ position. Instead, both in his objection to the motion for summary judgment and on appeal, the plaintiff has focused his argument on the position that count one sounds in ordinary negligence and that there is sufficient evidence to support a cause of action on that theory. By doing so, the plaintiff has failed to meet his burden of demonstrating that there is a genuine issue of material fact as to whether the defendants possessed or controlled the premises in the location where he fell. Accordingly, the court correctly concluded that there was no genuine issue of material fact and that the defendants were entitled to judgment as a matter of law on count one of the second amended complaint.

II

The plaintiff also claims that the court improperly granted the defendants’ motion for summary judgment as to count two of his second amended complaint because it improperly concluded, pursuant to 42 U.S.C. § 14502 (a) of the Volunteer Protection Act of 1997 (act), 42 U.S.C. § 14501 et seq., that § 52-557m provided Becker with statutory immunity in her capacity as president of Friends. He maintains that § 52-557m does not apply because he did not allege that Becker was negligent in her policy or decision-making activities, but rather that she was negligent in her supervising, training and oversight activities as president of Friends. Such a distinction, he maintains, renders 42 U.S.C. § 14502 (a) inapplicable. We disagree.

“The following well settled principles of statutory interpretation govern our review. . . . Because statutory interpretation is a question of law, our review is de novo. . . . 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. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . .” (Internal quotation marks omitted.) Commissioner of Public Safety v. Freedom of Information Commission, 137 Conn. App. 307, 313-14, 48 A.3d 694, cert. granted on other grounds, 307 Conn. 918, 54 A.3d 562 (2012).

Count two of the second amended complaint alleges that Becker was negligent in her supervising, training and overseeing duties in that she failed to set up a walk-through of the path to determine if safety hazards existed; failed to assign a member of Friends to do a walk-through; and failed to notify or assign a volunteer to notify the state to plow or sand the area.

Section 52-557m provides: “Any person who serves as a director, officer or trustee of a nonprofit organization qualified as a tax-exempt organization under Section 501 (c) of the Internal Revenue Code of 1986, or any subsequent corresponding internal revenue code of the United States, as from time to time amended, and who is not compensated for such services on a salary or prorated equivalent basis, shall be immune from civil liability for damage or injury occurring on or after October 1, 1987, resulting from any act, error or omission made in the exercise of such person’s policy or decision-making responsibilities if such person was acting in good faith and within the scope of such person’s official functions and duties, unless such damage or injury was caused by the reckless, wilful or wanton misconduct of such person.”

“Decision-making responsibility” is not defined in the General Statutes. “In the absence of a definition of terms in the statute itself, [w]e may presume . . . that the legislature intended [a word] to have its ordinary meaning in the English language, as gleaned from the context of its use. . . . Under such circumstances, it is appropriate to look to the common understanding of the term as expressed in a dictionary.” (Citation omitted; internal quotation marks omitted.) State v. LaFleur, 307 Conn. 115, 128, 51 A.3d 1048 (2012). Similarly, under General Statutes § 1-1 (a), “[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.” Thus, we turn to Black’s Law Dictionary for guidance on the statutory language. Black’s Law Dictionary defines “decision-making responsibility” as the “authority to come to a binding resolution of an issue.” Black’s Law Dictionary (9th Ed. 2009). When the phrase “decision-making responsibility” is examined in conjunction with the dictionary definitions of supervise, oversee and train, the allegations of the complaint describe conduct falling squarely within Becker’s decision-making responsibilities. The allegations imply that Becker had the authority to make decisions that included ordering a walk-through of the park before the event, directing that a Friends volunteer perform the walk-through, and informing the state of dangerous conditions that the volunteer might find. Accordingly, the plaintiff cannot prevail on his claim that decision-making responsibilities do not encompass supervising, training and overseeing.

Next, the court must determine if § 52-557m provides greater protections for volunteers than does the act, such that it is not preempted. Section 14502 (a) of the act provides in relevant part that “[t]his chapter preempts the laws of any [s]tate to the extent that such laws are inconsistent with this chapter, except that this chapter shall not preempt any [s]tate law that provides additional protection from liability relating to volunteers or to any category of volunteers in the performance of services for a nonprofit organization or governmental entity.” 42 U.S.C. § 14502 (a).

The act, pursuant to 42 U.S.C. § 14503 (a), provides in relevant part that “no volunteer of a nonprofit organization . . . shall be liable for harm caused by an act or omission of the volunteer on behalf of the organization . . . if — (1) the volunteer was acting within the scope of the volunteer’s responsibilities in the nonprofit organization ... at the time of the act or omission; (2) if appropriate or required, the volunteer was properly licensed, certified, or authorized by the appropriate authorities for the activities or practice in the [s]tate in which the harm occurred, where the activities were or practice undertaken within the scope of the volunteer’s responsibilities in the nonprofit organization . . . (3) the harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the volunteer; and (4) the harm was not caused by the volunteer operating a motor vehicle, vessel, aircraft, or other vehicle for which the [s]tate requires the operator or owner of the vehicle, craft, or vessel to — (A) possess an operator’s license; or (B) maintain insurance.” 42 U.S.C. § 14503 (a).

The protections of 42 U.S.C. § 14503, however, are subject to a number of exemptions and exceptions. Nonprofit organizations that employ volunteers enjoy an exemption from the act if the organization seeks to bring suit against the volunteer. 42 U.S.C. § 14503 (b). States also enjoy an exemption if they have a state law that: (1) requires adherence to risk management procedures; (2) holds an organization or entity hable for its volunteers to the same extent that an employer would be hable for its employee; (3) allows liability if the civil action is brought by an officer of state or local government pursuant to state or local law; or (4) allows liability if a nonprofit organization or governmental entity provides a financially secure source of recovery for those who suffer harm as a result of a volunteer’s actions on behalf of the organization or entity. 42 U.S.C. § 14503 (d). Moreover, there are exceptions to the limitations on liability if the conduct of the volunteer: (1) constituted a crime of violence or act of international terrorism; (2) constituted a hate crime; (3) involves a sexual offense for which the defendant has been convicted; (4) involves misconduct in violation of federal or state civil rights; or (5) occurred while the volunteer was under the influence of alcohol or drugs. 42 U.S.C. § 14503 (f) (1).

Additionally, in those instances where either an exception or exemption applies and a civil action may be brought against a volunteer, punitive damages can be sought if “the claimant establishes by clear and convincing evidence that the harm was proximately caused by an action of such volunteer which constitutes willful or criminal misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed.” 42 U.S.C. § 14503 (e) (1). Moreover, “[e]ach defendant who is a volunteer, shall be liable only for the amount of noneconomic loss allocated to that defendant in direct proportion to the percentage of responsibility of that defendant . . . with respect to which that defendant is liable. . . .” 42 U.S.C. § 14504 (b) (1).

Similar to 42 U.S.C. § 14503, under § 52-557m, a volunteer must be acting within the scope of his duties, and the conduct must not be caused by reckless, wilful or wanton misconduct. Section 52-557m does not, however, contain any of the exceptions or exemptions found in the act. Thus, we interpret § 52-557m to provide greater protections to this particular kind of volunteer, namely, a director, officer or trustee of a nonprofit organization, than the act. Because § 52-557m “provides additional protection from liability relating to . . . any category of volunteers in the performance of services for a nonprofit organization”; 42 U.S.C. § 14502 (a); it is not preempted by the act. Accordingly, the court correctly determined that Becker was statutorily immune from suit and granted the motion for summary judgment on count two of the plaintiffs second amended complaint.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff also claims that should this court find that the first count of his second amended complaint sounds in ordinary negligence or negligence under 2 Restatement (Second), Torts § 324 A (1965), he has established that the defendants are liable for failure to exercise reasonable care because he provided evidence that they had a duty. We need not reach this argument, as we conclude that the court correctly construed the first count of the plaintiffs complaint as sounding in premises liability-

       The department of environmental protection has since been renamed the department of energy and environmental protection.

       We note that the defendants’ motion for summary judgment was addressed to the amended complaint that was filed on October 27, 2010. Neither the parties, nor the court, addressed the fact that the second amended complaint was filed after the motion for summary judgment. In fact, the plaintiff continued to reference the amended complaint in his objection to the defendants’ motion for summary judgment that was filed on March 15, 2011. Because the changes in the second amended complaint do not affect the analysis of the plaintiffs claim, we will treat the defendants’ motion for summary judgment and the court’s memorandum of decision as applying to the operative second amended complaint.

       The plaintiff also appears to argue that the court improperly ruled that he failed to state a cause of action. As the ruling was in the context of a motion for summary judgment, rather than a motion to strike, the plaintiff maintains that he could not avail himself of the right to replead under Practice Book § 10-44. We disagree. At no point in the court’s memorandum of decision did the court conclude that the plaintiff failed to state a cause of action. Rather, the court concluded that count one of the plaintiffs second amended complaint sounded in premises liability, rather than ordinary negligence. Such a result is not analogous to the granting of a motion to strike.

       The plaintiff also alleges that it was the “mode of operation” of the defendants to provide nature walks. This allegation suggests that the plaintiff is attempting to cast himself as a business invitee. On the basis of the allegations of the complaint, however, the plaintiff was not a business invitee, but rather, a public invitee. “A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public. ... A business invitee is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.” (Citation omitted; internal quotation marks omitted.) Corcoran v. Jacovino, 161 Conn. 462, 465, 290 A.2d 225 (1971). Even if the plaintiff could allege that he was a business invitee, the mode of operations allegation would provide further support that he has alleged negligence based on a theory of premises liability, as the mode of operation rule applies only to premises liability. The mode of operation rule is “a rule of premises liability pursuant to which a business invitee who is injured by a dangerous condition on the premises may recover without proof that the business had actual or constructive notice of that condition if the business’ chosen mode of operation creates a foreseeable risk that the condition regularly will occur and the business fails to take reasonable measures to discover and remove it.” Kelly v. Stop & Shop, Inc.,
        281 Conn. 768, 769-70, 918 A.2d 249 (2007) (en banc). Accordingly, the plaintiff could recover only if he alleged a cause of action under a theory of premises liability.

       Because the defendants did not file an answer to the plaintiffs second amended complaint, the first time that Becker raised the claim of statutory immunity was in the motion for summary judgment.

       The plaintiff also claims that Becker can be held liable under 42 U.S.C. § 14504, which, he argues, is an exception to the rule of nonliability of volunteers found at 42 U.S.C. § 14503. Because we have determined that § 52-557m does apply, we decline to reach this argument.

       Supervise is defined as “oversee with the powers of direction and decision of implementation of one’s own or another’s intentions.” Webster’s Third New International Dictionary Unabridged (2002). Oversee is synonymous with supervise. Id. Train means to “instruct or drill in habits of thought or action” or to “give instruction to.” Id.


author: BEACH, J.

text:
    BRENNAN ASSOCIATES v. RADIOSHACK CORPORATION
    (AC 33961)
    Beach, Espinosa and SehaUer, Js.

      Argued September 25, 2012
    officially released January 1, 2013

      Darin L. Callahan, with whom, on the brief, was Dennis J. Kokenos, for the appellant (defendant).

      Raymond W. Ganim II, for the appellee (plaintiff).
   Opinion

BEACH, J.

In this summary process action, the defendant, RadioShack Corporation, appeals from the order of the trial court granting the motion of the plaintiff, Brennan Associates, for distribution of funds. The defendant claims that the court abused its discretion in granting the plaintiffs motion for disbursement of funds without holding a hearing pursuant to General Statutes § 47a-26f. We affirm the judgment of the trial court.

The following facts and procedural history are relevant. In September, 2008, the plaintiff brought a summary process action against the defendant for possession of property located at 938 White Plains Road in Trumbull (property), claiming nonpayment of rent, termination of a right or privilege to occupy the premises and lapse of time. The plaintiff filed a motion for use and occupancy payments to be made during the pendency of the proceedings in the trial court. In January, 2009, the court granted the motion and ordered the defendant to pay into court use and occupancy retroactive to November, 2008. The defendant paid into court the ordered use and occupancy until it vacated the property in April, 2011. In May, 2011, the plaintiff filed a motion to disburse funds, seeking that the court order disbursement to it of the funds held by the court clerk. The court held a hearing on the motion on June 15, 2011. At the hearing, the defendant argued that it was entitled to a full evidentiary hearing pursuant to § 47a-26f on account of claims arising during the pen-dency of the action. After hearing arguments, the court denied the motion, reasoning that it could not act until there was a final judgment in the summary process action. The plaintiff thereafter withdrew the summary process action.

In September, 2011, the plaintiff filed a second motion to disburse funds. In a memorandum of decision on the motion, the court stated that farther argument on the motion was not necessary and that it was ruling on the motion based on the claims of the parties proffered at the June 15, 2011 hearing. The defendant argued that a hearing was required under § 47a-26f because, under paragraph 41 of the parties’ lease, the defendant was to pay 3 percent of gross sales per month, rather than the stated rent of $4216.66 per month if the gross sales of the previous fiscal year were less than $600,000, and thus the use and occupancy payment for each month could only be determined at the end of each month. Thus, the defendant argued that the amount of use and occupancy owed each month would constitute a new claim arising during the pendency of the proceedings.

The court determined that the defendant was not entitled to a § 47a-26f disbursement hearing because the defendant had not alleged claims arising during the pendency of the proceedings after the order for payment, as statutorily required for such a hearing. The court reasoned that the issue presented by the plaintiff, the claim of failure to apply the lease provisions regarding rent, had been decided by the court when it established the amount of payments for use and occupancy. The claims did not arise during the course of proceedings after such order. The claim sounded in breach of contract, and the present summary process action was not subject to such a claim or counterclaim. The court granted the plaintiffs motion to disburse funds and ordered all sums to be distributed to the plaintiff. This appeal followed.

Our standard of review regarding a claim of improper distribution of use and occupancy payments is abuse of discretion. Rock Rimmon Grange #142, Inc. v. The Bible Speaks Ministries, Inc., 112 Conn. App. 1, 6, 961 A.2d 1012 (2009); see MFS Associates, Inc. v. Autospa Realty Corp., 19 Conn. App. 32, 35, 560 A.2d 484 (1989) (“[t]he evident purpose of [§ 47a-26f] was to authorize the court to settle equitably the many disputes which may arise during the pendency of the proceeding not necessarily related to the merits of the action” [internal quotation marks omitted]); see also Electrical Wholesalers, Inc. v. M.J.B. Corp., 99 Conn. App. 294, 300-301, 912 A.2d 1117 (2007) (abuse of discretion standard applied to claims concerning equitable relief).

Section 47a-26f provides: “After entry of final judgment, the court shall hold a hearing to determine the amount due each party from the accrued payments for such use and occupancy and order distribution in accordance with its determination. Such determination shall be based upon the respective claims of the parties arising during the pendency of the proceedings after the date of the order for payments and shall be conclusive of such claims only to the extent of the total amount distributed.”

The defendant argues that the court erred in concluding that the claim that the use and occupancy payments should be distributed according to the amount of rent to be paid as if the terms of the lease were in effect did not arise during the pendency of the proceedings. The defendant contends that this claim did arise during the proceedings and after the date of the order for payments and, accordingly, it was entitled to a hearing.

The defendant, essentially, is seeking to challenge the court’s initial order regarding the amount of use and occupancy payments in a § 47a-26f hearing. Section 47a-26f states that the distribution of funds shall be made subject to claims “arising during the pendency of the proceedings after the date of the order for payments . . . .” (Emphasis added.) The amount of monthly use and occupancy payments to be deposited with the court was resolved by the court at the time of the order for use and occupancy payments, rather than after the date of the order. The court did not abuse its discretion in determining that the defendant’s 3 percent claim did not arise during the pendency of the proceedings after the order.

Furthermore, the defendant’s claim does not relate to the physical use and occupancy of the premises. In Rock Rimmon Grange #142, Inc. v. The Bible Speaks Ministries, Inc., supra, 112 Conn. App. 1, this court stated that a proceeding to order the distribution of funds under General Statutes § 47a-35b, which is “nearly identical [to § 47a-26f] in language and purpose”; id., 5; is “properly limited to those claims related to the use and occupancy of the premises . . . .’’Id., 7. Cases involving the distribution of funds under § 47a-26f have pertained to issues such as the lack of a certificate of occupancy; Groton Townhouse Apartments v. Marder, 37 Conn. Sup. 688, 691-92, 435 A.2d 47 (1981); credit to tenants for payment for minor repairs; Ciavaglia v. Bolles, 38 Conn. Sup. 603, 605-606, 457 A.2d 669 (App. Sess. 1982); and the irrelevancy of a prior pending foreclosure action to distribution of use and occupancy payments. Frank Smith Associates v. Tucker, 37 Conn. Sup. 897, 898-99, 442 A.2d 485 (App. Sess. 1982); see also Invest II v. Southern Connecticut Mental Health & Substance Abuse Treatment Center, Superior Court, judicial district of Fairfield, Housing Session, Docket No. 940727340 (February 10, 1995) (13 Conn. L. Rptr. 613) (claims in § 47a-26f hearing can only be those directly related to physical use and/or occupancy of the premises). The court properly held that, based on its claim, the defendant could not obtain relief sought by way of a § 47a-26f hearing and, therefore, there was no need to hold a hearing.

The defendant also argues that the June 15, 2011 hearing did not satisfy the requirements of § 47a-26f because it (1) was not an evidentiary hearing and (2) occurred before the entry of a final judgment. We are not persuaded.

Section 47a-26f provides that “[a]fter entry of final judgment, the court shall hold a hearing . . . .” Although the statute does not specify what type of hearing need be held, in this case the court did not abuse its discretion in determining that an evidentiary hearing was not needed. At the June 15,2011 hearing, the defendant presented its claim that under the lease — which had been terminated — it was permitted to pay 3 percent of gross sales. The court heard the defendant’s argument but did not permit it to present testimony on the matter, reasoning: “I don’t see how the 3 percent argument [arises] after my order. I see it [arising] then.” The defendant’s argument that the use and occupancy it owed should be set by paragraph 41 of the lease, was not, as previously stated, a claim that properly could be considered during a § 47a-26f hearing. The court did not err in not allowing testimony because no relief could be granted in any event.

We do not agree with the defendant that it is reversible error for the § 47a-26f hearing in this case to have occurred prior to the entry of a final judgment. The court heard the parties’ arguments regarding the distribution of funds at the June 15, 2011 hearing but did not rule due to a lack of a final judgment. The court ruled on the plaintiffs second motion to distribute based on the arguments proffered by the parties at the June 15, 2011 hearing. There is no indication that the defendant sought to introduce any testimony or to raise any arguments in the later hearing other than those which it had raised at the June 15, 2011 hearing. Accordingly, the court’s failure to hold a hearing after the entry of a final judgment is harmless.

The judgment is affirmed.

In this opinion the other judges concurred.

       RadioShack Corporation was formerly known as Tandy Corporation.

       The defendant was ordered to pay $11,550 by January 27, 2009, and to make subsequent monthly payments of $3850, which the court determined was the fair market rental value of the premises.

       No claim has been made that, for the purposes of § 47a-26f, a withdrawal is not the functional equivalent of a final judgment.

       The rather obvious question arises whether there is any appellate review of the court’s initial determination of the amount of use and occupancy payments. At first blush, a lack of review seems anomalous.
      The statutory scheme, however, provides context. Authority to set use and occupancy payments during the pendency of proceedings in the trial court is established by General Statutes § 47a-26b. If the defendant objects to a plaintiffs motion for such payments, the court is to hold a hearing in order to establish the fair rental value of the premises. At this point, of course, the lease, if any, has been terminated by the notice to quit; nonetheless, the last agreed upon rent, if any, is prima facie evidence of the fair rental value. General Statutes § 47a-26b (c). There is no apparent avenue for a defendant to obtain appellate review of the amount, but there is no sanction for failure to pay for use and occupancy other than a requirement that an answer be filed and trial be held expeditiously. General Statutes § 47a-26b (d). The amount set does not, therefore, estop either party should a subsequent action for damages occur. The only “prejudice” is a speedy trial.
      Summary process trials are designed to proceed expeditiously in any event. In this case, the defendant remained in possession of the premises for more than two years after institution of the action, all the while making use and occupancy payments. Presumably, neither party was eminently dissatisfied with the status quo.

       The defendant next claims, alternatively, that the court violated its due process rights by not permitting it to introduce testimony at the June 15, 2011 hearing regarding its claim that it was permitted to pay 3 percent of gross sales under the lease. There is no constitutional right to present testimony on nonprobative and immaterial issues.


author: SHELDON, J.

text:
    LYNDA PRYOR v. EDMOND PRYOR
    (AC 33608)
    DiPentima, C. J., and Sheldon and Lavery, Js.
    Argued September 19, 2012
    officially released January 1, 2013

      Jeanmarie A. Riccio, for the appellant (defendant).

      Annmarie Briones, with whom, on the brief, were Louise T. Truax and Mary T. Surette, for the appel-lee (plaintiff).

      Barbara M. Schellenberg, for the appellee (guardian ad litem).
   Opinion

SHELDON, J.

In this postdissolution proceeding, the defendant, Edmond Pryor, claims that the trial court improperly found him in contempt for failing to pay the fees of the court-appointed guardian ad litem of his minor children, Attorney Jocelyn B. Hurwitz, for services rendered throughout the contentious litigation leading up to the dissolution of his marriage to the plaintiff, Lynda Pryor. The defendant also claims that the court improperly denied the motion for a protective order he filed in response to a request for production filed by Hurwitz relating to her motion for contempt, and improperly granted Hurwitz’ motion for a protective order as to his own request for production in relation to that motion. We disagree and affirm the judgment of the trial court.

In its July 28, 2010 memorandum of decision dissolving the parties’ marriage, the dissolution court, Calmar, J., had ordered: “The defendant shall be responsible for the payment of the guardian ad litem’s counsel fees.” Although the dissolution court made no finding as to the total amount of those fees, it received an affidavit from the guardian ad litem establishing that her total bill for services through March 26,2010, was $63,301.32. Neither party appealed from the dissolution judgment or any of the court’s orders associated therewith.

On October 19, 2010, Hurwitz filed a motion for contempt against the defendant on the ground that he had not paid her fees as the guardian ad litem, as ordered in the July 28, 2010 dissolution judgment. In response, the defendant filed a motion entitled “Defendant’s Motion for a Transfer to Judge Calmar in Middletown and Other Relief,” in which he raised, for the first time, a concern as to alleged “unethical misconduct [by Hur-witz] in not disclosing [a] conflict of interest” and claimed that Judge Calmar, who had presided over the dissolution proceedings, was in a unique position to assess the effect of that alleged misconduct.

Also on October 19,2010, the defendant filed amotion for a protective order from a request for production filed by Hurwitz for certain of his financial information. In that motion, the defendant also sought various forms of relief related to his allegations of misconduct on the part of Hurwitz and requested compensation for various expenses he claimed to have incurred throughout the custody dispute in the dissolution proceeding.

On November 2, 2010, Hurwitz filed a motion for a protective order as to a request for production filed by the defendant, in which he sought “copies of communications between [Hurwitz] and the [djefendant’s former lawyer, as well as [Hurwitz] and a partner of hers at the law firm at which she is a shareholder, as well as communications between [Hurwitz] and a prior lawyer for the [p]laintiff in this case.”

On November 18, 2010, the court, Hon. Howard T. Owens, Jr., judge trial referee, heard oral argument on the subject motions, after which, on December 7, 2010, it issued the following written order: “Pursuant to the corrected memorandum of decision, dated July 28,2010 ... it was ordered that the fees of [Hurwitz] be paid by the defendant. The defendant was properly noticed. It is ordered that the defendant pay to the guardian ad litem within 30 days of notice the sum of $63,301. The defendant’s motion for [a] protective order dated October 29, 2010 ... is denied. The defendant’s motion to transfer ... is denied. The guardian ad litem’s motion for [a] protective order ... is granted.”

On December 30, 2010, the defendant filed a motion to reargue the motions disposed of in the court’s December 7, 2010 order, claiming for the first time that he “was not afforded an opportunity to give testimony or to examine the [guardian ad litem] as to the amount or reasonableness of her fees . . . .” The plaintiff filed an objection to the defendant’s motion, arguing that the defendant should have contested the reasonableness of the guardian ad litem’s fees at the time of trial. On June 2,2011, the court afforded the parties the opportunity to be heard on the defendant’s motion to reargue. At the hearing, in addition to his argument that he had not been afforded the opportunity to present evidence on the guardian ad litem’s motion for contempt, the defendant claimed, again for the first time, that a judge trial referee does not have the statutory authority to hold a party in contempt on an order issued by a judge of the Superior Court. On June 3, 2011, the court summarily denied the defendant’s motion to reargue. This appeal followed.

On appeal, the defendant claims that the court improperly found him in contempt for failing to pay the guardian ad litem’s fees, improperly denied his motion for a protective order and improperly granted the motion for a protective order filed by Hurwitz. In reviewing a trial court’s ruling on a motion for contempt or a motion for a protective order, we must determine whether the court abused its discretion in making those rulings. Hibbard v. Hibbard, 139 Conn. App. 10, 16-17, 55 A.3d 301 (2012); Coss v. Steward, 126 Conn. App. 30, 46, 10 A.3d 539 (2011).

Here, the court never made a finding that the defendant was or was not in contempt for not paying the fees claimed by the guardian ad litem. Indeed, the court’s order is devoid of any mention of contempt. Nor did the court explain the bases for its orders on the motions for a protective order. In the absence of such an explanation, there is no basis upon which we can conclude that the court abused its discretion.

The defendant also claims that because Judge Owens is a judge trial referee, he lacked the authority to hold the defendant in contempt for violating an order issued by a Superior Court judge. The defendant did not object to Judge Owens’ consideration of the motion for contempt or the competing motions for a protective order until he received unfavorable rulings on those motions. The defendant did not raise this claim in his motion to reargue but, rather, raised it for the first time at the June 2, 2011 hearing. In summarily denying the defendant’s motion to reargue, the court did not address this claim and the defendant did not ask the court to clarify or to articulate its decision to address this argument in any other way. Because General Statutes § 52-434a (a) affords judge trial referees the same powers and jurisdiction as judges of the court from which proceedings have been referred to them, the defendant’s claim that Judge Owens lacked authority to preside over the motion for contempt is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       On November 20,2008, the parties agreed to the appointment of Hurwitz as the guardian ad litem for their minor children. At the time of Hurwitz’ appointment, Attorney Debra B. Marino represented the plaintiff in the dissolution proceedings. The defendant claims that Hurwitz had a conflict of interest in and that she should have disclosed that one of her partners at Cohen and Wolf, P.C., was Attorney Vincent M. Marino, the husband of Attorney Debra B. Marino.

       At no time during that hearing did either party seek to present evidence in support of their claims. At the end of the hearing, the court indicated: ‘Til take the papers and you’ll hear from the court.” During that hearing, the defendant did not challenge the reasonableness of Hurwitz’ fees but, rather, focused solely on his claim that Hurwitz was not entitled to any fees due to her alleged conflict of interest.

       We note with consternation the fact that the defendant did not raise his concerns regarding the guardian ad litem’s alleged conflict of interest until she filed a motion for contempt seeking payment of her fees, months after the dissolution court rendered judgment dissolving the parties’ marriage and issuing orders therein relating to the custody and parenting of their children. At no time prior to the filing of the guardian ad litem’s motion for contempt were her fees challenged. The defendant acknowledged at the hearing on the motion for contempt that he had not contested the guardian ad litem’s fees prior to the dissolution judgment and claimed that he had not done so because he could not have known how the conflict of interest would affect the judgment until the court rendered judgment. We are puzzled by the defendant’s claim in this regard, which he made not only through counsel, but also as an attorney representing himself. There is either a conflict of interest or there is not; a party cannot genuinely raise such a claim, having known of it all along, on the basis that he or she was adversely affected by that conflict. The defendant ultimately indicated, despite zealous argument by both himself and his attorney, that the resolution of his claim regarding an alleged conflict of interest is “to be left to the grievance committee.” At the June 2, 2011 hearing on the defendant’s motion to reargue, counsel for the defendant explained to the court that the defendant’s grievance against the guardian ad litem had, by that time, been dismissed.


text:
    STATE OF CONNECTICUT v. JOHN J. GAUTHIER
    (AC 33471)
    DiPentima, C. J., and Beach and Sullivan, Js.

      Argued October 15, 2012
    officially released January 1, 2013

      Daniel J. Krisch, special public defender, for the appellant (defendant).

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were Brian W. Preleski, state’s attorney, and John H. Malone, senior assistant state’s attorney, for the appellee (state).
   Opinion

BEACH, J.

The defendant, John J. Gauthier, appeals from the judgment of conviction, rendered after a jury trial, of assault in the second degree in violation of General Statutes § 53a-60 (a) (1). The defendant claims that the court’s denial of his request for a continuance violated his constitutional right to present a defense. We affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, and procedural histoiy are relevant to this appeal. In the early morning hours of September 20, 2008, Kevin Haythe and the victim were drinking with a mutual friend in the friend’s New Britain apartment. When an argument developed between the mutual friend and Haythe, the victim accompanied Haythe outside the apartment. While outside, Haythe continued to argue with the mutual friend, who remained on a second floor porch. The defendant, his girlfriend and others, meanwhile, were standing in the yard of a neighboring house. Apparently believing that the victim was the one arguing with the friend rather than Haythe, the defendant yelled at the victim to “calm down.” He added: “[D]on’t think I don’t know what you did . . . if I see you around here after tomorrow I’ll shoot you in the face.” The victim walked away and went into the backyard. As the victim stood in the backyard sending a text message, the defendant approached the victim and “sucker punched” him on the left side of his face. The victim fell to his knees and the defendant “jumped on [the victim’s] back.” The defendant “dug” his fingers into the victim’s eye sockets and “tried to pull [his eyes] out.” The victim screamed “[Haythe], please get him off me, get him off me, he’s digging my eyes out, he’s digging my eyes out.” Haythe “tapped” the defendant and said, “it’s enough . . . get off him,” and the defendant stopped. The victim was treated for his injuries. As a result of this incident, the victim’s right eye was “severely deviated outward” and will “never come back” to its proper position in the eye socket. He suffered a complete loss of vision in his right eye. The defendant was arrested and charged pursuant to a second substitute information with assault in the first degree in violation of General Statutes § 53a-59 (a) (2).

On October 28, 2010, the second day of trial, the defendant requested to have his special public defender, Raul Davila, dismissed and to have new counsel appointed or, in the alternative, to represent himself. After a lengthy hearing, the court denied the defendant’s request. On November 1, 2010, the defendant again requested to represent himself. After canvassing the defendant, the court granted his request to represent himself and appointed Davila as standby counsel. Later that day, the state rested and the defendant called one witness to the stand.

On November 2, 2010, the defendant requested a continuance in order to call Davila’s investigator, Donald Light, as a witness. The defendant said he wanted Light to testily about statements allegedly made to him by two of the state’s witnesses, Eldridge Evans, who lived on the first floor of the New Britain apartment building where Haythe and the victim had been visiting on September 20, 2008, and Haythe. Light had included in his report to Davila references to Haythe’s statements. Haythe and Evans both testified as to the events of that night during the state’s case. The court conducted a probing inquiry; both sides relied on Light’s report for the substance of Light’s proposed testimony regarding Haythe’s statements. The defendant orally represented to the court the content of Evans’ statement to Light.

The defendant informed the court that aside from Light, he had no additional witnesses. Davila represented that Light was unavailable that morning, that he “might” be available that afternoon, but he was “99.9 percent assured” that Light would be available the next day. The defendant represented that Light would testify that (1) Evans told Light that he denied any knowledge of the incident at issue because he “was probably drunk,” which testimony the defendant claimed contradicted Evans’ testimony describing the events of the night at issue, (2) Haythe told him “that there had been harsh words exchanged between the defendant and the victim which provoked the fight,” which statement, the defendant argued, was contrary to Haythe’s testimony that there were no words exchanged, (3) Haythe told Light that he saw the defendant “hit” the victim, which, the defendant argued, was contrary to Haythe’s testimony, because the movement involved in hitting someone is “totally different” from the movement involved in eye-gouging, (4) Haythe admitted to Light to being under the influence of alcohol “and/or drugs” at the time of the incident, which statement, the defendant suggested, was contrary to Haythe’s testimony that he had consumed alcohol and was unaware of any drug use and (5) Haythe’s description to Light of the location of the fight was inconsistent with Haythe’s testimony.

The court denied the defendant’s request for a continuance. The court reasoned that, to the extent that there were inconsistencies between statements to Light and in-court testimony, neither Davila, who cross-examined Haythe, nor the defendant, who cross-examined Evans, had asked these witnesses about any such inconsistencies. The court further determined that none of Light’s proposed testimony was either admissible or material. The defendant rested his case. The jury found him guilty of assault in the second degree. Judgment entered and this appeal followed.

Our Supreme Court has set forth the following legal principles regarding review of a denial of a continuance: “The determination of whether to grant a request for a continuance is within the discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion. ... A reviewing court is bound by the principle that [e]very reasonable presumption in favor of the proper exercise of the trial court’s discretion will be made. ... To prove an abuse of discretion, an appellant must show that the trial court’s denial of a request for a continuance was arbitrary. . . . There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. . . . In addition, we consistently have acknowledged that [o]ur role as an appellate court is not to substitute our judgment for that of a trial court that has chosen one of many reasonable alternatives. . . .

“We have articulated a number of factors that appropriately may enter into an appellate court’s review of a trial court’s exercise of its discretion in denying a motion for a continuance. Although resistant to precise cataloguing, such factors revolve around the circumstances before the trial court at the time it rendered its decision, including: the timeliness of the request for continuance; the likely length of the delay; the age and complexity of the case; the granting of other continuances in the past; the impact of delay on the litigants, witnesses, opposing counsel and the court; the perceived legitimacy of the reasons proffered in support of the request; [and] the defendant’s personal responsibility for the timing of the request ....

“In the event that the trial court acted unreasonably in denying a continuance, the reviewing court must also engage in harmless error analysis. ... In connection with this inquiry into harmless error, [w]e distinguish between two types of cases: those in which a constitutional right has been implicated by a denial of a continuance, and those of a nonconstitutional nature. . . . Although prejudice is presumed in instances in which a defendant has suffered a deprivation of a constitutional right, in order to establish reversible error in nonconsti-tutional claims, the defendant must prove both an abuse of discretion and harm . . . .” (Citations omitted; internal quotation marks omitted.) State v. Coney, 266 Conn. 787, 801-802, 835 A.2d 977 (2003).

The court denied the motion for a continuance in this case primarily on the ground that Light’s proffered testimony was inadmissible. Although admissibility was not expressly mentioned in Coney, it is certainly a major factor, in these circumstances, in considering the legitimacy of the request. See Day v. Commissioner of Correction, 118 Conn. App. 130, 135 n.4, 983 A.2d 869 (2009) (court need not consider all Coney factors in ruling on motion for continuance), cert. denied, 294 Conn. 930, 986 A.2d 1055 (2010). Because the court did not abuse its discretion in ruling that Light’s proffered testimony was inadmissible, especially in view of the fact that the request for a continuance was made during trial, the defendant cannot meet his burden of showing that the court’s denial of the continuance was arbitrary and an abuse of discretion.

Section 6-10 of the Connecticut Code of Evidence, which is at issue in this case, provides in relevant part: “(c) ... If a prior inconsistent statement made by a witness is not shown to or if the contents of the statement are not disclosed to the witness at the time the witness testifies, extrinsic evidence of the statement is inadmissible, except in the discretion of the court.” “Where a party seeks to impeach a witness by using extrinsic evidence, certain standards must be met. The inconsistent statement must be relevant and of such a kind as would affect the witness’ credibility, and, generally, a foundation for introducing the statement should be laid at the time of cross-examination of the witness. ... In this state, we have no inflexible rule regarding the necessity of calling the attention of a witness on cross-examination to his alleged prior inconsistent statements before either questioning him on the subject or introducing extrinsic evidence tending to impeach him. From early times, it has consistently been held that it rests within the judicial discretion of the trial court whether to admit the impeaching statements where no foundation has been laid. . . . The trial court is vested with a liberal discretion as to how the inquiry should be conducted in any given case. . . . [U]sually, [however] the foundation for introducing a prior inconsistent statement is laid by asking the witness on cross-examination whether he made the statement and alerting him to the time and place at which it was made. . . . Where the witness denies having made the statement or is unable to recall having done so, extrinsic evidence may be admitted to show it was made.” (Citations omitted; internal quotation marks omitted.) State v. Ward, 83 Conn. App. 377, 393, 849 A.2d 860, cert. denied, 271 Conn. 902, 859 A.2d 566 (2004).

First, the defendant argues that the court abused its discretion in determining that Light’s proffered testimony that Evans denied any knowledge of the incident at issue because he “was probably drunk,” was inadmissible. The defendant claims that the suggested testimony that Evans was probably drunk was not inconsistent with his testimony that described the events on the night at issue, but rather cast doubt on Evans’ credibility- We are not persuaded. The purpose of a prior inconsistent statement, of course, is to cast doubt on credibility. If the statement were offered for the purpose of proving Evans was drunk and thus less credible, the statement obviously would be inadmissible hearsay. In its ruling, the court treated this statement as a prior inconsistent statement.

“Whether there are inconsistencies between the two statements is properly a matter for the trial court. . . . Inconsistencies may be shown not only by contradictory statements but also by omissions. . . . [^consistencies may be found in changes in position and they may also be found in denial of recollection. . . . The trial court has considerable discretion to determine whether evasive answers are inconsistent with prior statements.” (Citations omitted.) State v. Whelan, 200 Conn. 743, 748-49 n.4, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). The court did not abuse its discretion in treating the offer as an inconsistent statement and, as a result, in exercising its discretion not to admit the statement because a proper foundation had not been laid. If it was not inconsistent, it was hearsay.

Second, the defendant argues that the court abused its discretion in determining that Light’s proffered testimony that Haythe saw the defendant “hit” the victim was inadmissible. He contends that this statement was not inconsistent with Haythe’s testimony, but rather was a statement that tended to discredit Haythe’s testimony and could have led the jmy to infer that the defendant punched the victim but did not try to gouge his eyes out. Again, if it was not a prior inconsistent statement offered to contest credibility, it was inadmissible hearsay. The court ruled that Light’s proffered testimony in this regard was not necessarily inconsistent with Haythe’s trial testimony, but in the event it was, it was inadmissible because the defendant did not lay a proper foundation under § 6-10 (c) of the Connecticut Code of Evidence.

Haythe testified during the state’s case that while the victim was on the ground with the defendant on top of him, the defendant punched the victim, but he did not see any eye-gouging because he was “behind” the defendant. The court did not abuse its discretion in determining that Haythe’s statement was not inconsistent with trial testimony and thus inadmissible. See State v. Hines, 243 Conn. 796, 803, 709 A.2d 522 (1998) (“[p]rior consistent statements of a witness are generally regarded as hearsay and are not admissible at trial, either for their truth or for the purpose of rehabilitating a witness’ damaged credibility” [internal quotation marks omitted]); see also Conn. Code Evid. § 6-11 (a).

The defendant further argues that the “court should have exercised its discretion to allow Light’s testimony about Haythe’s other, inconsistent statements.” He contends that although generally a witness is first questioned about a prior inconsistent statement prior to the introduction of extrinsic evidence of the prior inconsistent statement, the court should have exercised its discretion to admit the statements under § 6-10 (c) of the Connecticut Code of Evidence and the failure to do so unfairly penalized the defendant for Davila’s failure to confront Haythe with prior inconsistent statements.

Our rules of evidence provide that “[i]f a prior inconsistent statement made by a witness is shown to or if the contents of the statement are disclosed to the witness at the time the witness testifies, and if the witness admits to making the statement, extrinsic evidence of the statement is inadmissible, except in the discretion of the court. If a prior inconsistent statement made by a witness is not shown to or if the contents of the statement are not disclosed to the witness at the time the witness testifies, extrinsic evidence of the statement is inadmissible, except in the discretion of the court.” (Emphasis added.) Conn. Code Evid. § 6-10 (c). “[W]e have no inflexible rule regarding the necessity of calling the attention of a witness on cross-examination to his alleged prior inconsistent statements before either questioning him on the subject or introducing extrinsic evidence tending to impeach him.” State v. Saia, 172 Conn. 37, 46, 372 A.2d 144 (1976). “In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the trial court’s rulings on evidentiary matters.” (Internal quotation marks omitted.) State v. Hall, 66 Conn. App. 740, 767-58, 786 A.2d 466 (2001), cert. denied, 259 Conn. 906, 789 A.2d 996 (2002).

Courts have wide discretion whether to admit prior inconsistent statements that have not satisfied the typical foundational requirements in § 6-10 (c) of the Connecticut Code of Evidence; see State v. Daniels, 83 Conn. App. 210, 215, 848 A.2d 1235, cert. denied, 270 Conn. 913, 853 A.2d 528 (2004); and we cannot say that the court abused its wide discretion in ruling these statements inadmissible. The court noted that Davila had an opportunity to cross-examine Haythe regarding the statements and cross-examined him on only one. The court stated that Davila’s decision not to cross-examine Haythe regarding the rest of Light’s proffered statements was a matter of trial strategy and determined that to the extent that Haythe was not confronted with prior inconsistent statements made to Light, the extrinsic evidence was not admissible. We cannot say that the court abused its discretion.

Further, a review of Light’s report shows that although some of the details in Haythe’s statements might have been slightly different from his trial testimony, the overall import of the “new” statements would have been minimal or nonexistent. The same can be said for the defendant’s representation of Light’s proposed testimony regarding Evans’ statement. The court did not abuse its discretion in denying the request of even a relatively short continuance, where there was no abuse of discretion in the court’s preemptive eviden-tiary rulings and where the evidence sought to be admitted in any event would quite assuredly have made no difference in the outcome.

The judgment is affirmed.

In this opinion the other judges concurred.

       The victim testified that he had been arrested for raping the defendant’s girlfriend and pleaded guilty to unlawful restraint in that case.

       Several witnesses testified about the melee.

       The defendant was also charged with having committed an offense while on release in violation of General Statutes § 53a-40b and with being a persistent serious felony offender pursuant to General Statutes § 53a-40 (j). He pleaded guilty to both charges.

       The defendant argues that the denial of his request for a continuance impinged on his constitutional right to present a defense. “The right to present a defense, and its concomitant right to compulsory process, [however] are not unqualified . . . (Internal quotation marks omitted.) State v. Estrella, 277 Conn. 458, 487, 893 A.2d 348 (2006). “[T]he constitution does not require that a defendant be permitted to present every piece of evidence he wishes.” (Internal quotation marks omitted.) State v. Andrews, 102 Conn. App. 819, 827, 927 A.2d 358, cert. denied, 284 Conn. 911, 931 A.2d 932 (2007). “[A] defendant is . . . bound by the rules of evidence in presenting a defense.” (hitemal quotation marks omitted.) State v. Davis, 298 Conn. 1, 9, 1 A.3d 76 (2010).

       It is not apparent from the record whether other facts, such as impending juror unavailability, played any role. In the absence of an indication, we assume there was no special need to proceed expeditiously. Any delay, of course, is a contraindication in the decision whether to grant a continuance, to some degree.

       Evans testified that he had been drinking, but stated that although it was dark he thought he saw the defendant punch the victim, thereby causing the victim to fall to the ground, and then saw the two “scuffling ... on the ground.”

       Perhaps parenthetically, the only function of prior inconsistent statements is to affect credibility.

       In its ruling, the court specifically mentioned statements in Light’s proffered testimony which it thought were consistent with either Evans’ or Haythe’s in-court testimony and treated the remaining statements as inadmissible prior inconsistent statements under § 6-10 (c) of the Connecticut Code of Evidence.

       This rule is not absolute. See State v. Hines, supra, 243 Conn. 804. None of the exceptions listed in § 6-11 (b) of the Connecticut Code of Evidence, however, apply in this case.

       Davila confronted Haythe regarding his statement to Light that there had been “harsh words” between the defendant and the victim and Haythe admitted that he could have said it. Thus, this proffered testimony would fail within the ambit of the first sentence of § 6-10 (c) of the Connecticut Code of Evidence.

       With respect to Light’s proffered testimony regarding Haythe’s description to him of the location of the fight, the court stated that “I’m not sure that there’s really any inconsistency” between Light’s proffered testimony and Haythe’s in-court testimony in that regard. To the extent that there was no inconsistency; see State v. Whelan, supra, 200 Conn. 748 n.4 (“[w]hether there are inconsistencies between the two statements is properly a matter for the trial court”); it was not an abuse of discretion to deem a consistent statement inadmissible. See State v. Hines, supra, 243 Conn. 803-804; see also Conn. Code Evid. § 6-11 (a).


author: PETERS, J.

text:
    ROBERT J. PARISI v. KATHLEEN M. PARISI
    (AC 33139)
    Beach, Robinson and Peters, Js.

      Argued October 25, 2012
    officially released January 1, 2013

      M. Caitlin S. Anderson, with whom was Steven D. Ecker, for the appellant (defendant).

      H. Daniel Murphy, with whom, on the brief, was Michael D. DeMeola, for the appellee (plaintiff).
   Opinion

PETERS, J.

“To constitute contempt, a party’s conduct must be wilful. . . . Noncompliance alone will not support a judgment of contempt.” (Internal quotation marks omitted.) Gil v. Gil, 94 Conn. App. 306, 311, 892 A.2d 318 (2006). The principal issue in this appeal is whether the plaintiff wilfully failed to comply with a separation agreement incorporated into a dissolution judgment that provided for an alimony buyout in place of periodic alimony. The defendant wife appeals from the court’s denial of her motion for contempt, in which she claimed that the plaintiff deliberately had failed to satisfy the terms of the separation agreement by attempting to pay his obligations with assets worth significantly less than the agreed upon amount. We affirm the judgment of the court.

On November 19, 2010, in a judgment incorporating the parties’ separation agreement, the court dissolved the marriage between the plaintiff, Robert J. Parisi, and the defendant, Kathleen M. Parisi. On December 14, 2010, the defendant filed a postjudgment motion for contempt, order and clarification, in which she claimed in relevant part that the plaintiff wilfully and deliberately had failed to comply with the dissolution judgment in a number of respects, including an attempt to pay his alimony obligation with an individual retirement account (IRA) rollover. After a court hearing, the court denied the defendant’s motion for contempt and her request that the court order the plaintiff to comply with the provisions of the dissolution judgment. The defendant has appealed.

At a hearing on the motion for contempt held by the court on January 13,2011, the defendant testified about her understanding of the terms of the agreement and the parties’ actions to date toward performing their obligations under the agreement. Specifically, she testified about her dissatisfaction with the plaintiffs proposal to satisfy his alimony obligation by transferring an IRA rollover to her. In her view, the tax consequences attendant to the IRA rollover would result in an alimony payment of an amount less than the $300,000 stipulated in the separation agreement that had been incorporated into the dissolution judgment.

The court summarily denied the defendant’s motion for contempt. Thereafter, on August 8,2011, in response to the defendant’s request for a memorandum of decision pursuant to Practice Book § 64-1 (b), the court issued a brief decision stating its finding that the plaintiff did not have access to $300,000 in cash and that the defendant had been aware of this fact at the time that the terms of the separation agreement were negotiated. The court further found that the defendant had presented no evidence of wilful misconduct that would warrant a finding of contempt and that “the agreement is clear and concise and needs no clarification.” The court denied the defendant’s subsequent motion for articulation.

On appeal, the defendant claims that the court misconstrued the parties’ separation agreement, which, in her view, did not permit the defendant to satisfy the agreement’s alimony buyout provision with funds that would be taxed either upon or after being transferred to her. She maintains that the terms of the agreement expressly require a cash payment or a liquidation of assets that would result in a buyout equaling $300,000, posttransfer, and that the plaintiff deliberately has avoided complying with these terms. The defendant also contends that the court improperly declined to order the plaintiff to comply with the terms of the dissolution judgment regarding the transfer of marital assets. Finally, the defendant claims that, because the plaintiff left various items, such as large furniture, in the marital home, the dissolution judgment should be modified to penalize him by instituting a forfeiture of the rent he is entitled to receive until he removes the disputed items. We are not persuaded.

I

The defendant’s principal claim in this appeal is that the court improperly denied her motion for contempt. “A finding of contempt is a question of fact, and our standard of review is to determine whether the court abused its discretion in failing to find that the actions or inactions of the [plaintiff] were in contempt of a court order. ... [A] court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was wilful. ... [A] contempt finding is not automatic and depends on the facts and circumstances underlying it. . . . It is within the sound discretion of the court to deny a claim for contempt when there is an adequate factual basis to explain the failure to honor the court’s order.” (Citations omitted; internal quotation marks omitted.) Hibbard v. Hibbard, 139 Conn. App. 10, 16-17, 55 A.3d 301 (2012). “A good faith dispute or legitimate misunderstanding of the terms of an . . . obligation may prevent a finding that the payor’s nonpayment was wilful. This does not mean, however, that such a dispute or misunderstanding will preclude a finding of wilfulness as a predicate to a judgment of contempt. Whether it will preclude such a finding is ultimately within the trial court’s discretion.” (Internal quotation marks omitted.) Sablosky v. Sablosky, 258 Conn. 713, 718, 784 A.2d 890 (2001).

After the hearing on the motion for contempt, the court denied the defendant’s motion for lack of evidence that the plaintiff wilfully had failed to comply with the terms of the dissolution judgment. “In a civil contempt proceeding, the movant has the burden of establishing, by a preponderance of the evidence, the existence of a court order and noncompliance with that order.” Statewide Grievance Committee v. Zadora, 62 Conn. App. 828, 832, 772 A.2d 681 (2001).

To prevail in her appeal from the court’s judgment, the defendant must establish that the court abused its discretion in finding that she had failed to prove that the plaintiff wilfully had violated the parties’ dissolution judgment. The defendant’s evidence of wilfulness consists entirely of her own testimony that she refused the proposed IRA transfer in payment of the plaintiffs alimony obligation because, in her view, the transfer was economically less advantageous than the outright alimony payment of $300,000 specified in the dissolution judgment. In light of evidence that the plaintiff offered to pay the alimony buyout provision, and a lack of evidence that his motive in doing so was to avoid satisfying the full terms of the agreement, the court was not required to make a finding of wilfulness.

Alternatively, the defendant challenges the propriety of the court’s characterization of the separation agreement that was incorporated into the dissolution judgment as “clear and concise” and its construction of the agreement’s terms as authority for the plaintiffs satisfaction of his buyout obligation through the tender of any assets available to him. Without a reasoned analysis by the defendant of the wording of the separation agreement, her dissatisfaction with the court’s interpretation does not establish that the court’s ruling was improper. See United Illuminating Co. v. Wisvest-Connecticut, LLC, 259 Conn. 665, 670, 791 A.2d 546 (2002) (“the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous” [internal quotation marks omitted]). We note, moreover, that if the court had found the separation agreement to be ambiguous, such a finding by the court would have provided even more support for its ultimate conclusion that the plaintiffs conduct was not wilful and, therefore, could not have constituted a contempt of court.

As an additional basis for a finding of contempt, the defendant also accused the plaintiff of wilfully having failed to comply with other provisions of the parties’ separation agreement. She complained of his failure to provide requested financial documents, to complete payment of his student loan obligations and to transfer other marital assets to her. In her own testimony, however, the defendant acknowledged that there were unresolved issues about the manner in which these obligations were to be performed. In the absence of unequivocal evidence of the plaintiffs wilful noncompliance with the terms of the dissolution judgment, the court did not abuse its discretion in denying the defendant’s motion to find the plaintiff in contempt of court.

II

In the alternative, the defendant claims that, even absent a finding of wilfulness, the court abused its discretion by failing to issue an order of compliance to compel the plaintiff to fulfill his obligations under the dissolution judgment. Specifically, she claims that she was entitled to an order of compliance from the court requiring the plaintiff to (1) pay the alimony buyout provision with assets equal to $300,000 after any taxes have been deducted, (2) equally allocate the marital assets listed in the agreement, and (3) provide the defendant with documentation detailing money transfers and deposits related to the agreement. We disagree.

“An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... It is within the province of the trial court to find facts and draw proper inferences from the evidence presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . [T]o conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did.” (Internal quotation marks omitted.) Von Kohorn v. Von Kohorn, 132 Conn. App. 709, 713, 33 A.3d 809 (2011).

Although trial courts have the authority to order compliance with the terms of a court judgment without a finding of contempt; Kronholm v. Kronholm, 23 Conn. App. 577, 579, 582 A.2d 1178 (1990); the defendant has not provided compelling evidence that such an order was required under the circumstances of this case. In fight of the testimony at the hearing, the court reasonably could have determined that the plaintiff had satisfied or had adequately attempted to satisfy his obligations under the dissolution judgment, and that such an order was, therefore, unnecessary. Moreover, in its memorandum of decision, the court made no findings related to the motion for an order of compliance and did not expressly deny the order, but addressed only the defendant’s motion for contempt. The defendant had sought articulation of the court’s factual findings, but she did not move the court for a decision in respect to the order of compliance, nor did she move the court for reargument on this issue. As the court summarily denied the defendant’s motion, and the record before us does not provide a record adequate for review on the defendant’s motion for compliance, we decline to review the merits of her claim.

The defendant argues alternatively that, on the record before us, this court has the authority to issue an order of compliance. We are not persuaded. The cases cited by the defendant, Sosin v. Sosin, 109 Conn. App. 691, 706, 952 A.2d 1258 (2008), rev’d in part, 300 Conn. 205, 14 A.3d 307 (2011), and Clement v. Clement, 34 Conn. App. 641, 647, 643 A.2d 874 (1994), are distinguishable because they depend upon a predicate finding by this court that the trial court abused its discretion in denying the request for such an order. Under the circumstances of this case, because the court did not issue any decision with regard to the defendant’s motion for compliance, there can be no such finding. We are, therefore, precluded from issuing the order that the defendant requests.

Ill

Finally, the defendant maintains that the court improperly declined to grant her motion for clarification of the provision in the separation agreement dividing the parties’ real property. The defendant contends that, because the plaintiff left furniture and other personal items in the marital home owned by both parties, she was entitled to a ruling from the court that he is not entitled to receive the monthly rent stated in the agreement.

“[MJotions for interpretation or clarification, although not specifically described in the rules of practice, are commonly considered by trial courts and are procedurally proper. . . . Motions for clarification may not, however, be used to modify or to alter the substantive terms of a prior judgment . . . and we look to the substance of the relief sought by the motion rather than the form to determine whether a motion is properly characterized as one seeking a clarification or a modification.” (Citations omitted; internal quotation marks omitted.) Mickey v. Mickey, 292 Conn. 597, 604-605, 974 A.2d 641 (2009).

“The court’s judgment in an action for dissolution of a marriage is final and binding upon the parties, where no appeal is taken therefrom, unless and to the extent that statutes, the common law or rules of court permit the setting aside or modification of that judgment. . . . General Statutes § 46b-86 (a) provides in relevant part: Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court .... This section shall not apply to [property] assignments under [General Statutes §] 46b-81 .... The statute, therefore, deprives the Superior Court of continuing jurisdiction over that portion of a dissolution judgment providing for the assignment of property of one party to the other party under . . . § 46b-81. . . . Although the court has jurisdiction to assign property in connection with § 46b-81, that assignment is not modifiable.” (Emphasis in original; internal quotation marks omitted.) Buehler v. Buehler, 138 Conn. App. 63, 70, 50 A.3d 372 (2012).

The defendant’s motion, though titled a motion for clarification, in effect sought a modification of the original separation agreement. In her prayer for relief, the defendant specifically requested that the agreement “be modified/clarified . . . .” The motion asked the court to alter the terms of the agreement between the defendant and the plaintiff by adding language into the rental provision that would condition the plaintiffs right to receive the monthly rent on his removal of his belongings from the property.

Although the court had the authority to modify the dissolution judgment with respect to alimony payments, it had no such jurisdiction over the judgment’s property distribution orders. See Stechel v. Foster, 125 Conn. App. 441, 446-47, 8 A.3d 545 (2010), cert. denied, 300 Conn. 904, 12 A.3d 572 (2011). It seems to us that the relief sought by the defendant, although monetary in nature, does not qualify as a request for modification of alimony. At the very least, the defendant has not provided any persuasive argument that the court abused its authority in its refusal to grant the defendant’s motion.

In sum, we conclude that the court properly declined to find that the plaintiff wilfully had failed to comply with the terms of the separation agreement incorporated into the dissolution judgment between the parties. The court further properly declined to issue an order directing the plaintiff to comply with the terms of the agreement. Finally, the court properly declined to modify the terms of that agreement.

The judgment is affirmed.

In this opinion the other judges concurred.

       The separation agreement obligated the plaintiff (1) to pay the defendant $300,000, “non-taxable and non-deductible” (alimony buyout) from his share of the marital estate prior to the judgment of dissolution, (2) to pay off the balance of the parties’ student loans and their children’s student loans using specified funds and bonds, (3) to allocate equally specified bank accounts and other assets, and (4) to vacate the marital residence so that it could be sold, but to receive $1500 per month in rent from the defendant from the date the plaintiff vacated the residence to the date of its sale. The parties also agreed that they would waive the right to conduct further discovery, appraisal or inspection of the “person and/or property, income, and assets of the other” party, and that modification of the agreement would require a formal, written agreement by both parties.

       The defendant also claimed that the plaintiff had neglected to pay his student loan obligations, to transfer specified marital assets to her and that he was not entitled to receive rental payments for the marital home because he had not vacated the property.

       Practice Book § 64-1 (b) provides: “If the trial judge fails to file a memorandum of decision or sign a transcript of the oral decision in any case covered by subsection (a), the appellant may file with the appellate clerk an original and three copies of a notice that the decision has not been filed in compliance with subsection (a). The notice shall specify the trial judge involved and the date of the ruling for which no memorandum of decision was filed. The appellate clerk shall promptly notify the trial judge of the filing of the appeal and the notice. The trial court shall thereafter comply with subsection (a).”

       The relevant provision of the agreement provides: “The [plaintiff] shall receive $1,500 per month, pro-rated as necessary, from the date he vacates the property to the date the property is sold from the net profit from the sale of the property at closing after her equal allocation of the balance between the parties as set forth herein at Article 5-C from the [defendant’s] share of the net proceeds.”