text:
    STEVEN R. TREVORROW v. DIANE D. MARCUCCIO
    (AC 31513)
    Gruendel, Beach and Sullivan, Js.

      Argued September 21
    officially released November 23, 2010

      B. Paul Kaplan, for the appellant (defendant).

      Kevin D. Wickless, for the appellee (plaintiff).
   Opinion

GRUENDEL, J.

The defendant, Diane D. Marcuccio, appeals from the judgment of the trial court imposing a constructive trust over certain assets of her business in favor of the plaintiff, Steven R. Trevorrow. On appeal, the defendant’s sole claim is that the court improperly determined that she had been unjustly enriched by a “loan” from the plaintiff to her business. We affirm the judgment of the trial court.

The following facts, as found by the court, and procedural history are relevant to the resolution of the defendant’s appeal. Sometime before December, 2005, the defendant and her sister, Patricia Gilson, founded a metal works business known as Quality Job Shop (Quality). Thereafter, Gilson and her husband, Robert Gilson, loaned Quality $65,000 to purchase a lathe and a milling machine for use in Quality’s business. Although the business initially operated smoothly, the defendant and her sister agreed to dissolve Quality after several months. Undeterred, the defendant wanted to remain in business and approached the plaintiff, a personal friend, seeking a loan to repay the Gilsons the $65,000 originally used to purchase the lathe and milling machine. The plaintiff, who was himself interested in owning a business, refused to lend money to the defendant but, instead, offered to enter into a new partnership with her in exchange for providing the funds needed to repay the Gilsons.

Subsequently, in June, 2006, the parties negotiated an oral partnership agreement (agreement) that required the plaintiff to pay the Gilsons $56,400 in satisfaction of the preexisting loan and deposit $8600 into the new partnership’s bank account. To secure financing for this endeavor, the plaintiff obtained a home equity loan in the amount of $65,000 and further agreed “to work long hours and to acquire the skills necessary to operate the milling machine and the lathe” so as to contribute actively to the partnership business. The parties also agreed that the new partnership would be called Oneco Metalworking, LLC (Oneco), that “repayment of the plaintiffs monthly home equity loan would take priority over all other [Oneco] expenses and that the parties would split any profits on a [52 percent/48 percent] basis, with the defendant receiving 52 percent and the plaintiff receiving 48 percent.” For her part, the defendant agreed “to provide the milling machine and lathe and to work long hours” as well. Finally, the parties agreed that “they would meet with an attorney and take steps to formalize their partnership and to create a limited liability company.”

This arrangement worked well until December, 2006, when the plaintiff noticed “a discrepancy between the amount of money which should have been in [Oneco’s bank] account and the checks going out,” which the plaintiff “believed were payments by the defendant for personal expenses unrelated to Oneco” operations. Additionally, despite several requests by the plaintiff, the defendant repeatedly delayed formalizing the parties’ business relationship and at no time during their business relationship was a limited liability company formed. One day in late March, 2007, the plaintiff arrived at Oneco, “picked up his [tools] and his personal belongings and [never returned] to the business.”

The plaintiff commenced this action by complaint filed June 25, 2008, alleging, inter aha, a breach of fiduciary duty by the defendant with respect to a constructive trust over the moneys paid by the plaintiff to the Gilsons. More specifically, the plaintiff claimed that the defendant “breached her fiduciary duties to the [p]laintiff under [a] constructive trust [on the moneys paid to the Gilsons] by diverting the assets of [the] trust to herself, by wasting the assets, by spending the assets for personal use and gain, by failing to account to [the] [p]laintiff for the assets and by deliberately concealing her illegal, criminal, fraudulent and/or negligent acts.” In response, the defendant denied any wrongdoing, and by way of a special defense, asserted that the plaintiffs home equity loan had been partially paid in the amount of $12,501.96. The defendant also filed a counterclaim, alleging that the plaintiff materially breached the parties’ agreement by failing to deposit the $8600 into Oneco’s account and by leaving Oneco abruptly, resulting in consequential and incidental damages.

Following a one day trial to the court in which both parties testified, the court, in a memorandum of decision filed August 21, 2009, ruled in favor of the plaintiff on the count alleging breach of constructive trust by the defendant. In so ruling, the court explained that, although the “defendant [was] innocent of any wrongdoing, [she had] . . . been unjustly enriched by her failure to completely repay” the plaintiff for his payment to the Gilsons. Thus, because “the defendant [had] the benefit of sole and unfettered ownership and use of the lathe and the milling machine, as well as the benefit of not repaying the loan [from the plaintiff] which [ultimately] financed these purchases,” not requiring the defendant to repay the plaintiff the outstanding balance of the loan would be inequitable. Nonetheless, the court ruled in favor of the defendant with respect to both her special defense and counterclaim, thereby reducing the plaintiffs recovery by the amount of the previous repayment of the loan and the amount of overtime paid to Oneco’s employee as a result of the plaintiffs abrupt departure.

The defendant now claims that the court abused its discretion in imposing the constructive trust because the finding that the plaintiffs payment to the Gilsons was a “loan” to be repaid by Oneco, rather than a “buy-in” for which the plaintiff was solely liable, was clearly erroneous. In support of her claim, the defendant maintains that (1) imposition of the constructive trust was improper in light of the plaintiffs material breach of the parties’ agreement; (2) assuming a constructive trust should have been imposed, the court improperly imposed the constructive trust on the defendant in her personal capacity, rather than on Oneco as a business entity; and (3) the court improperly imposed the constructive trust over property that was never held by the defendant. We are unpersuaded.

Before addressing the merits of the defendant’s claim, we set forth the applicable standard of review. “A court’s determination of whether to impose a constructive trust must stand unless it is clearly erroneous or involves an abuse of discretion. . . . This limited scope of review is consistent with the general proposition that equitable determinations that depend on the balancing of many factors are committed to the sound discretion of the trial court.” (Internal quotation marks omitted.) Jarvis v. Lieder, 117 Conn. App. 129, 143, 978 A.2d 106 (2009).

“A constructive trust arises contrary to intention and in invitum, against one who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means, or who in any way against equity and good conscience, either has obtained or holds the legal right to property which he ought not, in equity and good conscience, hold and enjoy. . . . [Therefore], [a] constructive trust arises whenever another’s property has been wrongfully appropriated and converted into a different form . . . [or] when a person who holds title to property is subject to an equitable duty to convey it to another on the ground that [she] would be unjustly enriched if [she] were permitted to retain it.” (Emphasis added; internal quotation marks omitted.) Cadle Co. v. Gabel, 69 Conn. App. 279, 288, 794 A.2d 1029 (2002). In this way, “[t]he issue raised by a claim for a constructive trust is, in essence, whether a party has committed actual or constructive fraud or whether he or she has been unjustly enriched.” (Emphasis added.) Id., 295.

In the present case, the court based its imposition of a constructive trust on the finding that the defendant had been unjustly enriched by her exclusive retention of the milling machine and the lathe, without repayment to the plaintiff of the moneys used to purchase those machines. Moreover, the court explained that, because the parties agreed that the plaintiff was to be repaid directly by Oneco from partnership income, it was clear that the plaintiffs payment to the Gilsons was “a liability of [Oneco itself], and not a ‘buy-in’ to the partnership.”

Our review of the record reveals that the court had adequate evidence from which to conclude that the plaintiffs payment to the Gilsons in satisfaction of the preexisting loan to Quality was itself a loan to be repaid by Oneco, rather than a buy-in expense for which the plaintiff was exclusively liable. During trial, the plaintiff repeatedly testified, without objection by counsel for the defendant, that the payment to the Gilsons was to be repaid directly by Oneco and that, following the plaintiffs departure from the business, the defendant “said . . . she would continue making the payments on the loan and that [the parties] would just consider [the payment] as a loan.” Additionally, the record confirms that numerous checks were written directly from Oneco’s operating account to the bank that had provided the plaintiff with financing to repay the Gilsons. The defendant herself testified that she would have originally preferred that the plaintiffs payment to the Gilsons be treated strictly as a loan, as opposed to a capital offering by the plaintiff to buy into Oneco. Thus, the court’s ruling that the plaintiffs payment to the Gilsons constituted a “liability of [Oneco] and not a ‘buy-in’ to the partnership” was not clearly erroneous.

Nor do we accept the defendant’s contention that the court improperly imposed a constructive trust on the defendant in her personal capacity for property to which she herself never held title. At all times during the parties’ business relationship, Oneco existed as a general partnership, and “all partners [in a general partnership] are liable jointly and severally for all obligations of the partnership . . . .” General Statutes § 34-327 (a). Because the plaintiffs payment to the Gilsons constituted an obligation for which Oneco was liable, the defendant is also jointly and severally liable for this obligation in her personal capacity as a general partner of Oneco. See General Statutes § 34-327 (a). Also, the parties do not dispute the fact that the plaintiffs payment to the Gilsons was in satisfaction of a preexisting loan made to Quality to purchase the lathe and milling machine and that the defendant retained exclusive ownership of this equipment following the plaintiffs departure from Oneco.

Finally, we conclude that the defendant’s argument that the court abused its discretion by imposing the equitable remedy of a constructive trust in light of the plaintiffs breach of the parties’ agreement also is meritless. Regardless of whether the plaintiff was in breach of the parties’ agreement, the court acted within its discretion by imposing the equitable remedy of constructive trust on the basis of unjust enrichment on the part of the defendant. See Cohen v. Cohen, 182 Conn. 193, 203, 438 A.2d 55 (1980) (“[t]he imposition of a constructive trust by equity is a remedial device designed to prevent unjust enrichment”). Although the defendant made the cursory allegation during oral argument that the plaintiff acted with “unclean hands” in pursuing his claim of constructive trust, this argument was not advanced by the defendant during trial or in her brief, and, as such, we decline to consider it further in this appeal. Accordingly, the defendant’s claim fails.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff had no prior experience in the operation of this equipment; however, commencing in June, 2006, the plaintiff worked for the parties’ business, originally as an apprentice and ultimately as a full-time machinist, acquiring the skills necessary to operate both machines.

       Although the complaint originally alleged six causes of action, the plaintiff was successful only on the fifth count, which was premised on a construetive trust theory of recovery. In the present appeal, our analysis is limited to this fifth count.

       For clarification, we note that the court ultimately rendered judgment in favor of the plaintiff for the outstanding balance of the loan, $39,938.04. The court reached this figure by deducting from the original $56,400 loan the amount that the plaintiff had been repaid, $12,501.96, as well as the amount expended by Oneco as a result of the plaintiffs sudden departure from Oneco, which the court found to be $3960.

       Several checks were also written directly to the plaintiff, who testified that he would, in turn, present them to the bank as payments for the home equity loan.


source: Caselaw Access Project

author: WEST, J.

license: Public Domain

text:
    WILLIAM BARTLETT v. METROPOLITAN DISTRICT COMMISSION
    (AC 31231)
    Bishop, Gruendel and West, Js.

      Argued September 7
    officially released November 23, 2010

      Gerald S. Sack, with whom, on the brief, was Eamonn S. Wisneski, for the appellant (plaintiff).

      Jack G. Steigelfest, with whom, on the brief, was Thomas P. Celia, for the appellee (defendant).
   Opinion

WEST, J.

The plaintiff, William Bartlett, appeals from the judgment of the trial court granting the motion filed by the defendant, the Metropolitan District Commission (commission), to dismiss his negligence action. On appeal, the plaintiff claims that the court improperly (1) concluded that it lacked subject matter jurisdiction because the claim was governed by General Statutes § 13a-149, which requires him to provide notice to the commission, (2) failed to hold an evidentiary hearing prior to granting the commission’s motion to dismiss and (3) considered the commission’s assertion of governmental immunity. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts and procedural histoiy are relevant to our resolution of the plaintiffs appeal. At approximately 11 a.m. on February 15,2007, the plaintiff was walking on the sidewalk in the vicinity of 616 Maple Avenue in Hartford when he allegedly stepped into an improperly positioned storm drain, causing him to injure his lower back, legs and left knee. On May 14, 2008, the plaintiff commenced the present action against the commission. In his second amended complaint dated December 4, 2008, the plaintiff claimed that “[a]t all times relevant to this action, the [commission] . . . owned, controlled, maintained, and/or possessed the storm drain on which [he] stepped.” He further alleged that the commission was negligent because it failed to inspect and to maintain the storm drain in a reasonably safe condition and that it failed to warn him and other pedestrians that the storm drain was improperly positioned, creating an unsafe condition that the commission failed to remedy or to correct. On January 13, 2009, the commission filed its answer and “admitted] that the storm drain identified by the plaintiff is maintained by the [commission], although the adjoining street is maintained by the City of Hartford . . . .” In its answer, the commission also raised four special defenses in response to the operative complaint, asserting as the fourth special defense that (1) the plaintiffs alleged injuries were sustained as a result of an allegedly defective road and, therefore, his claim fell under the purview of § 13a-149 and (2) the plaintiffs claim was barred due to noncompliance with the ninety day notice requirement of § 13a-149. In response, the plaintiff filed a reply to the commission’s answer and special defenses denying all the allegations contained therein.

On January 30, 2009, the commission filed a motion to dismiss the action for lack of subject matter jurisdiction. See Practice Book § 10-31. The commission argued that § 13a-149, often referred to as the highway defect statute, was the exclusive remedy for personal injuries resulting from a defective road and that the plaintiffs failure to comply with the prerequisite ninety day notice provision contained in the statute deprived the court of subject matter jurisdiction. The commission submitted no affidavits in support of its motion to dismiss. Instead, it relied on the plaintiffs pleading that the storm drain that he stepped into was “owned, controlled, maintained, and/or possessed” by the commission. In response, the plaintiff argued that § 13a-149 was inapplicable because the commission was not the party bound to keep the “Maple Avenue roadway in repair.” Relying on the commission’s charter and interrogatoiy responses, the plaintiff argued that the city of Hartford (city) was the party responsible for maintaining and repairing Maple Avenue and that the commission was the party bound to maintain and to repair the storm drains on Maple Avenue only if given notice from the city or other sources. As a result, the plaintiff contended that there was a factual question regarding which party was bound to keep the storm drain in repair and that an evidentiary hearing was required to resolve this issue.

On April 30,2009, the court, by way of a memorandum of decision, granted the commission’s motion to dismiss, concluding that as a matter of law the plaintiffs claim invoked the highway defect statute, and, as a result, the statute was the exclusive remedy for his injuries. The court concluded that because the plaintiff had faded to comply with the notice provision mandated by § 13a-149, it lacked subject matter jurisdiction to review the claim. Accordingly, the court granted the commission’s motion to dismiss.

On May 14, 2009, pursuant to Practice Book § lili, the plaintiff filed a motion to vacate and reargue, asserting that (1) his claim did not fall within the pirnview of § 13a-149, (2) the court failed to address other issues that he had raised and (3) recent case law demonstrated that dismissal was improper. See footnote 2 of this opinion. The court denied the motion on June 10, 2009. On June 23, 2009, the plaintiff once again filed motions to vacate and reargue. That motion also was denied on August 12, 2009. This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiff first claims that the court improperly granted the commission’s motion to dismiss when it concluded that it lacked subject matter jurisdiction over his claim. We disagree.

We begin by setting forth the well settled legal principles and standard of review that guide our resolution of the plaintiffs claims. “A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [0]ur review of the court’s ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo.” (Internal quotation marks omitted.) Kelly v. Albertsen, 114 Conn. App. 600, 605, 970 A.2d 787 (2009). “When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, 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. . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.” (Internal quotation marks omitted.) Bagg v. Thompson, 114 Conn. App. 30, 37-38, 968 A.2d 468 (2009). We are also mindful of the well settled principle that, “in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.” (Internal quotation marks omitted.) Amodio v. Amodio, 247 Conn. 724, 728, 724 A.2d 1084 (1999).

“Trial courts addressing motions to dismiss for lack of subject matter jurisdiction pursuant to [Practice Book] § 10-31 (a) (l)may encounter different situations, depending on the status of the record in the case. As summarized by a federal court discussing motions brought pursuant to the analogous federal rule, ‘[l]ack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.’ Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). Different rules and procedures will apply, depending on the state of the record at the time the motion is filed.” (Emphasis added.) Conboy v. State, 292 Conn. 642, 650-51, 974 A.2d 669 (2009).

“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. ... If, however, the defendant submits either no proof to rebut the plaintiffs jurisdictional allegations ... or only evidence that fails to call those allegations into question . . . the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein. Finally, where a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to estabhsh jurisdictional facts.” (Emphasis in original; internal quotation marks omitted.) Columbia Air Services, Inc. v. Dept, of Transportation, 293 Conn. 342, 347-48, 977 A.2d 636 (2009).

In the present case, the plaintiff contends that he was not required to fulfill the necessary notice requirement under the highway defect statute because his claim does not come within the purview of § 13a-149. The following additional facts and procedural history are helpful in our resolution of this issue. In his memorandum of law in opposition to the commission’s motion to dismiss, the plaintiff argued that, according to the Compiled Charter of the Metropolitan District (charter), “the [commission’s] powers regarding highway maintenance and repair are limited to veiy specific factual circumstances . . . .” Specifically, the plaintiff claimed that the “ [ commission] is bound to keep a given roadway in repair only if: (1) the roadway is spread out over at least two member towns; (2) the member town turned control of the roadway to the [commission]; and (3) the [commission] accepted such responsibility.” The commission responded that § l-2b of its charter gives it the responsibility for the “the construction of the drains for water or sewage and the control and maintenance [of said storm drains] . . . .” (Internal quotation marks omitted.) See footnote 6 of this opinion.

The dispositive issue before this court is whether the plaintiffs claim as a matter of law is controlled by § 13a-149 and, thus, required the plaintiff to provide notice of his intent to commence the present action within ninety days of the alleged injury. See footnote 1 of this opinion. “Historically . . . municipalities enjoyed immunity for injuries caused by defective highways under common law, due in good part to the miles of streets and highways under their control. . . . The highway defect statute, § 13a-149, is a legislative exception to the immunity that municipalities enjoyed at common law and, as such, must be strictly construed.'1'' (Citation omitted; emphasis added; internal quotation marks omitted.) Read v. Plymouth, 110 Conn. App. 657, 663, 955 A.2d 1255, cert. denied, 289 Conn. 955, 961 A.2d 421 (2008). “The statutory provisions of § 13a-149 have two components that must be met in order to trigger its application: (1) the plaintiff must have sustained an injury by means of a defective ‘road or bridge’ and (2) the party whom the plaintiff is suing must be the ‘party bound to keep [the location where the injury was sustained] in repair.’ ” Novicki v. New Haven, 47 Conn. App. 734, 739-40, 709 A.2d 2 (1998). Ownership of the property does not establish the applicability of § 13a-149. Id., 742. “Whether a highway is defective may involve issues of fact, but whether the facts alleged would, if true, amount to a highway defect according to the statute is a question of law .... [A] highway defect is [a]ny object in, upon, or near the traveled path, which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon, or which, from its nature and position, would be likely to produce that result . . . .” (Citations omitted; internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 341-42, 766 A.2d 400 (2001). Put differently, once the condition has been classified as a highway defect, the court’s “subject matter jurisdiction is tied to the determination of which entity had the duty to maintain the property at the precise location of the plaintiffs fall.” Coughlin v. Waterbury, 61 Conn. App. 310, 315, 763 A.2d 1058 (2001).

We now turn to the plaintiffs claim that the court erroneously concluded, as a matter of law, that the improperly positioned storm drain that allegedly caused his injuries fell within the purview of § 13a-149. First, the plaintiff argues that the city had a nondelegable duty to maintain the roadway in a reasonably safe condition. Relying on Machado v. Hartford, 292 Conn. 364, 372, 972 A.2d 724 (2009), the plaintiff contends, essentially, that the commission was a third party contractor hired by the municipality to maintain and to repair the storm drains on Maple Avenue in Hartford and, thus, was not entitled to notice under § 13a-149 because the city was prohibited from delegating that duty. The plaintiffs reliance on Machado is misplaced. In Machado, our Supreme Court held that a municipality cannot “transfer its general duty to maintain and repair its roads onto a third party independent contractor.'” (Emphasis added.) Id., 375. Here, however, the commission is not a third party contractor. Rather, the commission itself is a municipal corporation created in 1929 by a special act of the General Assembly with its own prescribed duties to maintain the portion of the roadway that allegedly caused the plaintiffs injuries. See Rocky Hill Convalescent Hospital, Inc. v. Metropolitan District, 160 Conn. 446, 450, 280 A.2d 344 (1971); see also Martel v. Metropolitan District Commission, 275 Conn. 38, 41, 881 A.2d 194 (2005) (“commission is a political subdivision of the state”). As a result, we cannot conclude that this is a case in which the city delegated its duty to maintain the roadway to an independent third party contractor, as the Machado holding prohibits. See Machado v. Hartford, supra, 275.

The plaintiff next argues that it has yet to be determined whether the commission or the city had the duty to maintain the storm drain on Maple Avenue. In light of this alleged ambiguity, the plaintiff contends that the court improperly concluded that it lacked subject matter jurisdiction pursuant to § 13a-149 when it dismissed his action. We are not persuaded.

To support this argument, the plaintiff relies primarily on the commission’s charter and interrogatoiy responses. First, he argues that § l-2a of the commission’s charter binds the commission to repair the roadway only if: “(1) the roadway is spread out over at least two member towns; (2) the member town turned control of the roadway to the [commission]; and (3) the [commission] accepted such responsibility.” The plaintiff also maintains that the commission, in its interrogatory answers, acknowledged that it was not the party bound to maintain the storm drains on Maple Avenue. In the interrogatories, the commission was asked to “[i]dentify the person(s) responsible for the maintenance and inspection of the premises at the time and place where the plaintiff claims to have been injured.” It responded: “The [city] maintains the street. The [commission] maintains the storm drains, but only with notice of a defect from the [c]ity or other sources.” The plaintiff argues that this answer creates a question as to which municipal entity was responsible for the repair of the storm drain.

We conclude that the plaintiffs claim, as articulated in his second amended complaint, coupled with the commission’s answer and its charter and interrogatory responses, all illustrate clearly that the plaintiffs injury occurred at the portion of the road that the commission “was bound to keep ... in repair,” and, thus, his claim is controlled by the strictures of § 13a-149. See General Statutes § 13a-149; Ferreira v. Pringle, supra, 255 Conn. 343. Furthermore, because the plaintiff failed to act in accordance with the prerequisite notice provisions set forth in § 13a-149, the court properly decided that it lacked subject matter jurisdiction over the action when it granted the commission’s motion to dismiss. See Bagg v. Thompson, supra, 114 Conn. App. 41 (court lacks subject matter jurisdiction if plaintiff fails to provide municipality with notice of intent to sue within ninety days of accident); see also Novicki v. New Haven, supra, 47 Conn. App. 739 (“where a statute . . . sets prerequisites to suit ... a plaintiff not meeting the statutory criteria lacks standing and the court is said to lack jurisdiction over the case”).

First, we conclude that an improperly positioned storm drain cover located on the sidewalk is a defect under § 13a-149. “The word road or highway as used in the highway defect statute has usually been construed to include sidewalks. . . . The term sidewalk is meant to apply to those areas that the public uses for travel. . . . Furthermore, a highway is defective within the meaning of § 13a-149 when it is not reasonably safe for public travel, and the term public travel refers to the normal or reasonably anticipated uses that the public makes of a highway in the ordinary course of travel.” (Internal quotation marks omitted.) Bellman v. West Hartford, 96 Conn. App. 387, 395, 900 A.2d 82 (2006). Since the cover of the storm drain was located on a sidewalk, it was reasonable to anticipate that the public would encounter it in the ordinary course of travel. Thus, the court properly determined, as a matter of law, that the facts admitted to in the pleadings constituted a highway defect for the purposes of § 13a-149. See Ferreira v. Pringle, supra, 255 Conn. 344 (highway defective when “condition exists which makes travel not reasonably safe for the public” [internal quotation marks omitted]); Himmelstein v. Windsor, 116 Conn. App. 28, 38-39, 974 A.2d 820 (physical obstruction at street level in traveled portion of road resulted in highway defect under § 13a-149), cert, granted on other grounds, 293 Conn. 927, 980 A.2d 910 (2009). Second, we are not persuaded by the plaintiffs contention that there was uncertainty pertaining to which municipal entity was bound to keep the storm drain in repair. As stated previously, the linchpin of this argument tenuously pivots on the plaintiffs perceived ambiguity of the commission’s interrogatory response that stated: “The [city] maintains the street. The [commission] maintains the storm drains, but only with notice of a defect from the [c]ity or other sources.” The flaw in this argument, however, is that the plaintiff ignores the factual admissions in his complaint that place the responsibility for maintenance of the Maple Avenue storm drains squarely within the commission’s municipal authority. Additionally, the commission’s admission to these facts in its answer further buttresses our conclusion.

“Factual allegations contained in pleadings upon which the [cause] is tried are considered judicial admissions and hence irrefutable as long as they remain in the case. . . . West Haven Sound Development Corp. v. West Haven, 201 Conn. 305, 312, 514 A.2d 734 (1986); see State v. Rodriguez, 180 Conn. 382, 396, 429 A.2d 919 (1980) (noting that [t]he vital feature of a judicial admission is universally conceded to be its conclusiveness upon the party making it, i.e. the prohibition of any further dispute of the fact by him, and any use of evidence to disprove or contradict it . . .); Cassidy v. Southbury, 85 Conn. 221, 224, 82 A. 198 (1912) (It was not necessary for the defendant to prove what the plaintiff admitted by the pleadings. ... An admission in pleading dispenses with proof, and is equivalent to proof. . . .); see also Futterleib v. Mr. Happy’s, Inc., 16 Conn. App. 497, 504, 548 A.2d 728 (1988) (noting that judicial admissions may be expressed in different forms such as formal pleading or written stipulation).” (Internal quotation marks omitted.) Ferreira v. Pringle, supra, 255 Conn. 345.

In the present casé, the facts admitted to in the pleadings clearly allege that the commission maintained the storm drain at issue. Furthermore, at no time during the proceedings did the plaintiff seek to have the admissions in his complaint withdrawn, explained or modified. See id. These undisputed facts are further supported by our reading of the commission’s charter that confers on the commission the municipal authority to be in “control and maintenance” of the commission’s water and sewer drains. See footnote 6 of this opinion.

To support his argument that the responsibility for the storm drain remains in question, the plaintiff appears to rely on this court’s decision in Coughlin v. Waterbury, supra, 61 Conn. App. 315-16. In Coughlin, we explicitly stated that “subject matter jurisdiction is tied to the determination of which entity had the duty to maintain the property at the precise location of the plaintiff s fall." (Emphasis added.) Id., 315. Moreover, our holding in Coughlin is further distinguished from the present facts because the parties in that case submitted affidavits that “squarely conflicted as to which entity had the duty to maintain the property.” Id. Here, the commission’s motion to dismiss was predicated on the facts alleged in the complaint and the subsequent pleadings — all of which name the commission as the party bound to keep the property in repair. We determine, therefore, that the facts admitted to in the pleadings place the plaintiffs claim within the purview of § 13a-149.

Because the plaintiff did not comply with the required notice provisions of § 13a-149, the court ruled correctly, as a matter of law, that it lacked subject matter jurisdiction to hear the case. See Bellman v. West Hartford, supra, 96 Conn. App. 394 (“[i]f § 13a-149 applies, the plaintiff must comply with the notice provisions set forth therein in order for the trial court to have subject matter jurisdiction”); see also Ferreira v. Pringle, supra, 255 Conn. 344 (same).

II

We next turn our attention to the plaintiffs claim that the court was required to conduct an evidentiary hearing prior to ruling on the commission’s motion to dismiss. Our Supreme Court has instructed that “in the absence of any disputed issues of fact pertaining to jurisdiction, there [is] no need to hold an evidentiary hearing before deciding the motion to dismiss.” Amore v. Frankel, 228 Conn. 358, 369, 636 A.2d 786 (1994); cf. Conboy v. State, supra, 292 Conn. 652 (“where a jurisdictional determination is dependent on the resolution of a critical factual dispute,” due process necessitates evidentiary hearing be conducted); Coughlin v. Waterbury, supra, 61 Conn. App. 315 (same). “A material fact is one that will make a difference in the result in the case.” Trotta v. Branford, 26 Conn. App. 407, 412, 601 A.2d 1036 (1992). “It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact . . . .” (Internal quotation marks omitted.) Martel v. Metropolitan District Commission, supra, 275 Conn. 47.

Even when viewing the pleadings in a light most favorable to the plaintiff, as we are required to do in this case, we cannot conclude that there is any critical factual dispute regarding which municipal entity was bound to keep the storm drain in repair. Although the plaintiff attempts to create a factual dispute by purporting that there are contradictory responses between the commission’s answer and interrogatory responses regarding its responsibility to maintain the storm drains, we fail to see the contradiction that he attempts to elucidate or, for that matter, how this alleged contradiction brings into question the commission’s admitted duty to maintain the storm drains. The allegations in the present case did not contain a factual dispute regarding jurisdiction that necessitated an evidentiary hearing. See Kelly v. Albertsen, supra, 114 Conn. App. 609. The commission’s motion to dismiss did not challenge the factual allegations in the plaintiffs complaint; see id.; nor did it challenge the facts contained in the subsequent pleadings. Accordingly, we conclude that the court properly ruled on the motion to dismiss without conducting an evidentiary hearing. See id.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 13a-149 provides: “Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. No action for any such injury sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury. No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation. If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor. No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby.”

       The remaining special defenses asserted by the commission in its answer alleged that the plaintiffs claims were foreclosed under: (1) the doctrines of governmental and municipal immunity and qualified immunity; (2) immunity pursuant to General Statutes § 52-557n; and (3) contributory negligence. See footnote 9 of this opinion.

       See Nikiel v. Turner, 119 Conn. App. 724, 726, 989 A.2d 1088 (2010).

       In his memorandum of law in objection to the commission’s motion to dismiss, the plaintiff attached two exhibits: §§ 1-1 through l-2a-b of the Compiled Charter of the Metropolitan District and the plaintiffs interrogatories from January 13, 2009.

       In its memorandum of decision from April 30, 2009, the court addressed the plaintiffs objections to the motion to dismiss, noting that “[t]he only relevant reason [to deny the motion to dismiss before the court] is the plaintiffs assertion that the claim does not fall within ... § 13a-149.”

       Section l-2a of the Compiled Charter of the Metropolitan District states in relevant part: “[T]he authority of said district shall include only such streets and highways as enter more than one of the towns of said district or shall form a boundary or part of a boundary between two or more of such towns, and have, from time to time, been designated and described or . . . which are voluntarily turned over to said district by any town or city within said district acting through the duly constituted authority of any such town or city having authority to lay out highways and have been accepted by said district.”
      Section l-2b of the Compiled Charter of the Metropolitan District states in relevant part: “[T]he construction of drains for water or sewage and the control and maintenance of all the foregoing in the public highways and elsewhere throughout the district, together with such control of the streams and water courses of said district as is necessary or convenient for the foregoing as hereinafter more particularly stated; for purposes of effectuating and carrying out any contract with the Connecticut Resources Recovery Authority, as described in this section, the Metropolitan District shall be deemed to be a municipal authority . . . .”

       In Machado, the city of Hartford hired a private, independent third party contractor to maintain the road where the purported injury took place. The contractor was not a municipal entity. See Machado v. Hartford, supra, 292 Conn. 366, 375. Our Supreme Court held that a municipal corporation may not abrogate its duty to maintain a roadway by delegating the care of its streets to a third party independent contractor. Id., 375.

       The plaintiffs position, pressed at oral argument before this court, is that because the commission repairs the storm drains only upon notice from the city or other sources, this fact in some way removes the commission from liability under § 13a-149. The plaintiff has not pointed us to any authority that supports this premise, and our research has not uncovered any cases in which there existed a dual responsibility pertaining to maintenance under § 13a-149. Moreover, as an intermediate appellate court we are obligated to follow the well established precedent that places liability under § 13a-149 strictly on the municipal entity that has the “duty ... to keep [the property] in repair ... or the party bound to keep [the property] in repair . . . .” (Citation omitted; emphasis added; internal quotation marks omitted.) Novicki v. New Haven, supra, 47 Conn. App. 742.

       The plaintiff also claims that the court improperly considered the commission’s first special defense of governmental immunity in dismissing his complaint for lack of subject matter jurisdiction. Specifically, he argues that a motion to dismiss is an insufficient procedural tool for a court to use when dismissing a case on the ground of governmental immunity. Quoting Vejseli v. Pasha, 282 Conn. 561, 923 A.2d 688 (2007), the plaintiff contends that only “[t]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss .... [However] the doctrine of governmental immunity implicates no such interest.” (Citation omitted; internal quotation marks omitted.) Id., 572; see also Bagg v. Thompson, supra, 114 Conn. App. 31-32 (same).
      After our careful review of the court’s memorandum of decision, it is clear that the court did not dismiss the plaintiff’s complaint on the ground that the commission possessed governmental immunity or immunity pursuant to General Statutes § 52-557n, as claimed by the plaintiff. In its memorandum of decision, the court stated that among all of the plaintiffs objections to the commission’s motion to dismiss “[t]he only relevant reason [to deny the commission’s motion] is the plaintiffs assertion that the claim does not fall within ... § 13a-149.” Thereafter, the court reiterated this point, finding that “the claim comes within the purview of § 13a-149 and because the plaintiff failed to provide written notice to the [commission, the commission’s] motion to dismiss is granted.” As a result of our conclusions in parts I and II of this opinion, we need not review this claim.


author: PETERS, J.

text:
    KINDRED NURSING CENTERS EAST, LLC v. ARTHUR MORIN
    (AC 31176)
    Robinson, Alvord and Peters, Js.

      Argued September 14
    officially released November 23, 2010

      Marc S. Blubaugh, pro hac vice, with whom were James F. Biondo and, on the brief, Judith Raines, Jennifer M. Turk, pro hac vice, and Sara Bunke Evans, pro hac vice, for the appellant (plaintiff).

      James R. Fogarty, for the appellee (defendant).
   Opinion

PETERS, J.

Under our common law, a power of attorney creates a formal contract of agency between the grantor and his attorney in fact. Long v. Schull, 184 Conn. 252,256,439 A.2d 975 (1981). Under our statutory law, this agency relationship encompasses a variety of transactions that the grantor presumptively has authorized his attorney in fact to undertake on his behalf. General Statutes § 1-42 et seq. The central issue in this case is whether, pursuant to these established legal principles, a person to whom a resident of a nursing home has given a power of attorney has a duty to assist the nursing home in securing the continuation of the resident’s eligibility for medicaid financing. Concluding that an attorney in fact had no such duty, the trial court granted his motion for summary judgment. The nursing home has appealed. We affirm the judgment of the court.

On April 2, 2008, the plaintiff, Kindred Nursing Centers East, LLC, doing business as Courtland Gardens Health Center, filed a complaint charging the defendant, Arthur Morin, with negligence for having failed to cooperate in the determination of the continued medicaid eligibility of the plaintiffs patient, Charles Sclafani. After the defendant filed an answer denying his liability, the parties filed cross motions for summary judgment. Issuing only a brief memorandum of decision, the trial court denied the plaintiffs motion and granted the defendant’s motion. The plaintiff has appealed.

In rendering its judgment, the court relied on the following uncontested representations of fact in the affidavits and exhibits filed in support of each party’s motion for summary judgment. On August 30, 2006, Sclafani, while a patient in the plaintiffs nursing home, executed a document conferring a power of attorney on the defendant. The power of attorney authorized the defendant to act on Sclafani’s behalf in accordance with the provisions of the Connecticut Statutory Short Form Power of Attorney Act as codified in General Statutes §,§ 1-42 to 1-56.

Sclafani and his sister, Frances Genise, jointly owned a bank account at Wachovia Bank. The existence of this bank account led the state department of social services (department) to question Sclafani’s continued eligibility for medicaid. 6Accordingly, one of the plaintiffs employees asked the defendant to withdraw the balance of the account. On September 11, 2006, after consulting Sclafani, the defendant did so, keeping the proceeds of $2671.20 in an uncashed bank check. The defendant declined to use the proceeds to reduce Sclafani’s net worth to less than the $1600 threshold for continued medicaid eligibility because Sclafani never authorized him to do so.

The plaintiff thereafter informed the defendant that the department had renewed its request for information about the disposition of the funds in the Wachovia account. Although the defendant earlier had provided other information relating to Sclafani’s medicaid eligibility to the department, the defendant declined to respond to this inquiry without authorization from Sclafani. As a result, Sclafani’s medicaid eligibility was terminated on October 20, 2006. The plaintiff incurred substantial unreimbursed expenses for Sclafani’s care until his death in April, 2007.

The plaintiffs appeal has two parts. It challenges the propriety of the court’s denial of its motion for summary judgment and the propriety of the court’s granting of the defendant’s motion for summary judgment. Under well established principles of law, the plaintiff is entitled to plenary review of its challenges to the validity of the court’s rulings. Barry v. Quality Steel Products, Inc., 263 Conn. 424, 450, 820 A.2d 258 (2003).

I

The plaintiff challenges the court’s denial of its own motion for summary judgment and the court’s conclusion that “there are substantial issues of material fact and law as to [the] standing of the plaintiff and the claimed negligence of the defendant.” Because the plaintiff did not ask the court to articulate the grounds for its decision; see Practice Book § 66-5; the record contains no statement of the court’s reasoning in coming to its conclusion.

Before addressing the merits of the plaintiffs arguments, we must address our authority to consider them. Ordinarily, the denial of a motion for summary judgment is not appealable. Brown & Brown, Inc. v. Blumenthal, 288 Conn. 646, 653, 954 A.2d 816 (2008). That rule does not apply, however, if the moving party was not afforded the opportunity to have a full trial on the merits. Bristol v. Vogelsonger, 21 Conn. App. 600, 609, 575 A.2d 252 (1990). Because the trial court in this case granted the defendant’s motion for summary judgment, the plaintiffs appeal falls within this exception to the general rule, and, accordingly, it is properly before us.

On the merits, the plaintiff asserts that its affidavit and the exhibits attached thereto establish its claim that it was a third party beneficiary of the duty that the defendant, as an attorney in fact, owed to Sclafani to maintain Sclafani’s medicaid eligibility. The plaintiff alleges that, although apprised of an inquiry by the department into the disposition of the Sclafani bank account, the defendant negligently declined to honor his obligation to Sclafani and, by necessary implication, to the plaintiff, to respond to the questions posed by the department.

The plaintiff acknowledges that the defendant’s responsibilities as Sclafani’s attorney at law would not authorize its third party beneficiary claim. Krawczyk v. Stingle, 208 Conn. 239, 244, 543 A.2d 733 (1988). It does not contest the defendant’s representation that his refusal to cooperate in the department’s inquiry was based on the fact that Sclafani did not authorize him to do so. It has not suggested that Sclafani lacked the competence to grant or to withhold such authority.

The plaintiffs argument thus devolves into the proposition that, as a matter of law, the fiduciary responsibilities of an attorney in fact are greater than those of an attorney at law. It maintains that, like a conservator, the defendant had a duty to Sclafani to protect his medicaid eligibility and that it had standing to enforce that duty as its third party beneficiary. In support of this proposition, the plaintiff cites General Statutes § 45a-144 and Jewish Home for the Elderly of Fairfield County, Inc. v. Cantore, 257 Conn. 531, 778 A.2d 93 (2001), both of which concern the enforceability of a probate bond. It seems to us, however, that these authorities demonstrate the weakness of the plaintiffs argument. This is not a case about enforcing a probate bond because no such bond has ever been contemplated. More important, this is not a case about the liability of a conservator because the defendant, in fact, never undertook such a role and, indeed, under our statutes, could not have done so, because Sclafani was never adjudicated to have been incompetent. See General Statutes § 45a-644. In an area of the law as comprehensively codified as that of conservatorship, we decline to impute to the legislature an intent to impose the same duties on an attorney in fact as the law now imposes on a conservator. See, e.g., In re Ralph M., 211 Conn. 289, 306-307, 559 A.2d 179 (1989) (“Where a statute, with reference to one subject contains a given provision, the omission of such provision from a [similar] statute concerning a related subject ... is significant to show that a different intention existed. . . . That tenet of statutory construction is well grounded because [t]he General Assembly is always presumed to know all the existing statutes and the effect that its action or non-action will have upon any one of them.” [Citations omitted; internal quotation marks omitted.]).

In addition to ascribing to an attorney in fact the responsibilities of a conservator, the plaintiff relies on two out-of-state cases in support of its general claim that the defendant had a duty to preserve Sclafani’s medicaid eligibility. Neither of these cases supports the plaintiffs argument.

Perhaps in response to the scarcity of reported litigation defining the responsibilities of an attorney in fact, our legislature has enacted the Connecticut Statutory Short Form Power of Attorney Act, General Statutes §§ 1-42 to 1-56 (act). The power of attorney that Sclafani executed expressly referred to this act. In any case, even though the parties have not undertaken an analysis of the act, either at trial or in this court, we may take judicial notice of relevant legislation whenever it comes to our attention. Rusch v. Cox, 130 Conn. 26, 33, 31 A.2d 457 (1943).

The act is ilhiminating in several respects. A catchall section, General Statutes § 1-55, provides that “[i]n a statutory short form power of attorney, the language conferring general authority with respect to all other matters shall be construed to mean that the principal authorizes the agent to act as an alter ego of the principal with respect to any matters and affairs not enumerated in sections 1-44 to 1-54, inclusive, except health care decisions, and which the principal can do through an agent.” (Emphasis added.)

The preceding sections describe, in great detail, the scope of authority that a principal presumptively has conferred on an attorney in fact with respect to various types of transactions. For example, General Statutes § 1-47 (1) authorizes an attorney in fact “[t]o . . . modify and terminate any deposit account . . . made by or on behalf of the principal,” and General Statutes § 1-52 (9) authorizes an attorney in fact to prepare and to execute “all tax, Social Security, unemployment insurance and information returns . . . which the agent deems desirable or necessary for the safeguarding of the principal . . . .” Throughout the act, the emphasis is on the breadth of the discretionary authority presumptively conferred on an attorney in fact. Correlatively, the act contains not one provision holding an attorney in fact accountable to anyone other than his principal. We have no authority to add to a statute language that it does not contain. See, e.g., Viera v. Cohen, 283 Conn. 412, 431-32, 927 A.2d 843 (2007) (“It is a principle of statutory construction that a court must construe a statute as written. . . . Courts may not by construction supply omissions ... or add exceptions merely because it appears that good reasons exist for adding them. . . . The intent of the legislature, as this court has repeatedly observed, is to be found not in what the legislature meant to say, but in the meaning of what it did say. ... It is axiomatic that the court itself cannot rewrite a statute to accomplish a particular result. That is a function of the legislature.” [Internal quotation marks omitted.]).

II

The plaintiff also challenges the propriety of the judgment of the trial court granting the defendant’s motion for summary judgment. The plaintiff maintains that the order of the court granting the defendant’s motion must be reversed because the court misstated the nature of the plaintiffs claim by characterizing it as a claim that “the plaintiff was plainly intended to be a [third] party beneficiary of the [defendant’s] attorney-client relationship with [Sclafani].” (Internal quotation marks omitted.) According to the plaintiff, that characterization was incorrect because its negligence claim was based on the power of attorney that Sclafani gave to the defendant and not on the fact that the defendant also was Sclafani’s attorney at law.

It seems to us unlikely that the court’s order was intended to convey the meaning that the plaintiff ascribes to it. To eliminate the risk of any possible confusion, the plaintiff could, however, have asked the court to articulate its holding. It did not do so. “A reviewing court does not presume error; if the party challenging the trial court’s ruling has not satisfied its burden of demonstrating that the ruling was factually or legally untenable, a reviewing court must presume that the trial court properly reached its decision.” State v. Payne, 121 Conn. App. 308, 314, 996 A.2d 302, cert. denied, 297 Conn. 919, 996 A.2d 1193 (2010).

The judgment is affirmed.

In this opinion the other judges concurred.

       “In order to qualify for [m]edicaid, an individual must establish that he or she is financially needy by virtue of the lack of significant income and assets.” St. Joseph’s Living Center, Inc. v. Windham, 290 Conn. 695, 734-35, 966 A.2d 188 (2009).

       Although the plaintiffs complaint also charged the defendant with fraud, that claim has not been pursued in this appeal.

       The court’s order denying the plaintiffs motion stated that “there are substantial issues of material fact and law as to [the] standing of the plaintiff and the claimed negligence of the [defendant].” The court’s judgment granting the defendant’s motion stated that “there is no issue of material fact as to [the] defendant’s cross-motion for summary judgment and . . . [the] defendant is entitled to judgment as a matter of law.”

       The plaintiff operated the Courtland Gardens Health Center, at which Sclafani resided from 2004 until his death on April 5, 2007. He left no estate to be probated when he died.

       Sclafani’s eligibility for medicaid funding had been approved at the time of his admission to the nursing home.

       The plaintiff did not avail itself of the opportunity to ask the defendant, as a person who had legal access to Sclafani’s assets, to sign a contract requiring him to use those assets to pay for services rendered to Sclafani. See 42 U.S.C. § 1396r (c); Sunrise Healthcare Corp. v. Azarigian, 76 Conn. App. 800,806-807,821 A.2d 835 (2003). The statute authorizes such acontract as long as it contains no requirement for the promisor personally to guarantee the payment of nursing care services. Sunrise Healthcare Corp. v. Azarigian, supra, 806-807.

       As the defendant notes, the first case, Auburn Manor v. Irvin O. Buschkowsky Revocable Trust, 2006 WL 2806698, is an unpublished Minnesota case that bears the legend that it may not be cited and is not precedential. The second case, Aristocrat Lakewood Nursing Home v. Mayne, 133 Ohio App. 3d 651, 673-74, 729 N.E.2d 768 (2000), holds that the plaintiff had failed to prove that it was entitled to avail itself of the fiduciary duty that an attorney in fact owed to his principal.

       The power of attorney act was first enacted in 1965 and has since been amended for technical changes. As best we can tell, there is no relevant legislative history to illuminate its origins.


author: GRUENDEL, J.

text:
    JENNIFER JAMES v. THE VALLEY-SHORE Y.M.C.A., INC.
    (AC 31571)
    Gruendel, Beach and Sullivan, Js.

      Argued September 21
    officially released November 23, 2010

      William F. Gallagher, with whom, on the brief, were Michael L. Oh and Mark A. Balaban, for the appellant (plaintiff).

      Ralph W. Johnson III, for the appellee (defendant).
   Opinion

GRUENDEL, J.

The plaintiff, Jennifer James, appeals from the summary judgment rendered by the trial court in favor of the defendant, The Valley-Shore Y.M.C.A., Inc. She claims that the court improperly concluded that no genuine issue of material fact existed as to the notice element of this premises liability action. We affirm the judgment of the trial court.

The record, viewed in the light most favorable to the plaintiff; see Martinelli v. Fusi, 290 Conn. 347, 350, 963 A.2d 640 (2009); reveals the following facts. On June 26, 2007, the plaintiff and her husband, Alan James, swam in a pool on the defendant’s premises without incident. The plaintiff entered and exited the pool via a ladder with metal steps and encountered no difficulty in so doing. Neither the plaintiff nor her husband noticed any slippery conditions on the ladder at that time. When they returned to the defendant’s facility the following day, the plaintiff approached the same ladder to enter the pool. As she entered the pool via the ladder, she slipped and fell, resulting in physical injury to her shoulder and knee. Her husband already had entered the pool and did not witness her fall, but came to her aid soon thereafter. With the plaintiff standing in the pool beside him, he ran his hand over a step that was underwater and felt “a slimy, slippery, algae-like buildup .. . .” Nevertheless, the plaintiff and her husband at that time did not notify the defendant or its employees of the incident or the allegedly unsafe condition that they had discovered. Rather, the plaintiff first reported her accident to the defendant seven weeks later. At that time, she stated that she had “slipped on the steps” and did not mention any slippery substance or residue thereon.

The plaintiff thereafter commenced this negligence action against the defendant grounded in premises liability. Her one count complaint alleged, inter alia, that the negligence of the defendant in failing to maintain the ladder properly “caused [her] to fall on a slippery substance on [its] steps” and that “[t]he defendant knew, or had it exercised due care and proper diligence, should have known of the aforesaid conditions.” On April 15,2009, the defendant filed a motion for summary judgment, alleging that there was no genuine issue of material fact and that it was entitled to judgment as a matter of law. Specifically, the defendant averred that there was no evidence before the court that it had actual or constructive notice of the allegedly unsafe condition or that the condition caused the plaintiffs injuries. In support of the motion, the defendant submitted (1) certain deposition testimony of the plaintiff, (2) the affidavit of Heather Husted, the defendant’s aquatic director at all relevant times, (3) the affidavit of Joan Camire, the defendant’s executive director at the time of the incident, and (4) the affidavit of Maureen Paul, the defendant’s membership director at the time of the incident, to whom the plaintiff on August 17, 2007, reported her fall. In objecting to the motion, the plaintiff submitted the affidavit of her husband and certain deposition testimony of John Looney, the defendant’s facilities director. In its September 25, 2009 memorandum of decision, the court concluded that the plaintiff had not raised genuine issues of material fact “concerning the lack of proximate cause between the alleged accident and the alleged unsafe condition [or] concerning the defendant’s lack of actual or constructive notice of the alleged unsafe condition.” Accordingly, the court rendered summary judgment in favor of the defendant, and this appeal followed.

Summary judgment is appropriate when “the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Practice Book § 17-49; Miller v. United Technologies Corp; 233 Conn. 732, 744-45, 660 A.2d 810 (1995). “A material fact is a fact that will make a difference in the result of the case. . . . [T]he burden of showing the nonexistence of any material fact is on the party seeking summary judgment .... It is not enough for the moving party merely to assert the absence of any disputed factual issue; the moving party is required to bring forward . . . evidentiary facts, or substantial evidence outside the pleadings to show the absence of any material dispute.” (Citation omitted; internal quotation marks omitted.) Barasso v. Rear Still Hill Road, LLC, 81 Conn. App. 798, 803, 842 A.2d 1134 (2004).

Once met, the burden shifts to “the party opposing such a motion [to] provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” (Internal quotation marks omitted.) Bednarz v. Eye Physicians of Central Connecticut, P.C., 287 Conn. 158, 169, 947 A.2d 291 (2008). “A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiffs claim and involves no triable issue of fact.” (Internal quotation marks omitted.) Lunn v. Cummings & Lockwood, 56 Conn. App. 363, 370, 743 A.2d 653 (2000). Because the court’s decision on a motion for summary judgment is a legal determination, our review on appeal is plenary. Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005).

It is undisputed that the plaintiff was a business invitee of the defendant. The defendant thus owed the plaintiff a duty to keep its premises in a reasonably safe condition. Baptiste v. Better Val-U Supermarket, Inc., 262 Conn. 135, 140, 811 A.2d 687 (2002). “Typically, under traditional premises liability doctrine, [f]or [a] plaintiff to recover for the breach of a duty owed to [her] as [a business] invitee, it [is] incumbent upon [her] to allege and prove that the defendant either had actual notice of the presence of the specific unsafe condition which caused [her injury] or constructive notice of it. . . . [T]he notice, whether actual or constructive, must be notice of the very defect which occasioned the injury and not merely of conditions naturally productive of that defect even though subsequently in fact producing it.” (Internal quotation marks omitted.) Fisher v. Big Y Foods, Inc., 298 Conn. 414, 418 n.9, 3 A.3d 919 (2010); see also 2 Restatement (Second), Torts § 343, pp. 215-16 (1965). As our Supreme Court observed, “to recover under our current law, the plaintiff [is] required to prove that the defendant had had actual or constructive notice of the specific defect that caused the plaintiffs injuries.” (Emphasis added.) Riccio v. Harbour Village Condominium Assn., Inc., 281 Conn. 160, 164, 914 A.2d 529 (2007).

The plaintiff does not allege that the defendant possessed actual notice of the allegedly unsafe condition at issue. As a result, the question before us is whether a genuine issue of material fact exists as to whether the defendant had constructive notice of the defect of which the plaintiff complains. That question entails an inquiry into “whether the condition had existed for such a length of time that the [defendant’s] employees should, in the exercise of due care, have discovered it in time to have remedied it. . . . What constitutes a reasonable length of time is largely a question of fact to be determined in the light of the particular circumstances of a case. The nature of the business and the location of the foreign substance would be factors in this determination .... To a considerable degree each case must be decided on its own circumstances. Evidence which goes no farther than to show the presence of a slippery foreign substance does not warrant an inference of constructive notice to the defendant.” (Citations omitted; internal quotation marks omitted.) Kelly v. Stop & Shop, Inc., 281 Conn. 768, 777, 918 A.2d 249 (2007).

In her deposition testimony, the plaintiff averred that she watched her step as she entered the pool via the ladder. She testified that she was able to see clearly where she was stepping and observed no substance or residue on the step at that time. When asked to describe her fall, the plaintiff stated that “I put my foot down, and it happened so fast I just went in.” In response to the question of whether her left or right foot had stepped into the pool water before she slipped, the plaintiff stated: “I don’t remember, it happened so fast.” She further testified that she “couldn’t say which step” she had slipped on or whether that step was under water. The following colloquy transpired on that point:

“[The Defendant’s Counsel]: ... So, you don’t know if you fell after walking into the water; is that correct?

“[The Plaintiff]: Walking into the water, I wasn’t in the water.

“[The Defendant’s Counsel]: So you fell — you’re—

“[The Plaintiff]: I slipped on a step.

“[The Defendant’s Counsel]: So, you slipped on a step that was outside the water, above the water, correct? Is that what you’re telling me?

“[The Plaintiff]: I don’t know.

“[The Defendant’s Counsel]: Okay. ... I mean, your right foot, was it in the pool water or was it outside the pool when you slipped?

“[The Plaintiff]: When I slipped [it] must have been there, and I don’t know if that [step] was covered with water or not. Whatever step I stepped on, I don’t know if it was covered with water, but I slipped.”

The plaintiff also recounted how her husband discovered a residue on one of the ladder’s steps immediately after her fall. She testified that the step from which he had scraped the residue was under water. She further confirmed that she did not know if the step from which he had scraped the residue was the same step on which she slipped. In addition, the plaintiff stated that she did not know if the residue that her husband discovered was present on the step on which she slipped. The plaintiff also stated that she did not know if she slipped because of a misstep with her right foot.

On appeal, the plaintiff contends that she submitted evidence indicating that the defendant had constructive notice of the alleged defect. Specifically, she relies on her husband’s statement in his affidavit that he “felt a slimy, slippery, algae-like build-up” on the steps and on Looney’s deposition testimony. In that testimony, Looney was asked about the conditions under which a “slipperiness or sliminess” could appear in the pool. Looney stated that if one stopped applying chemicals, including chlorine to the pool, “within maybe four or five days you would see the pool start to turn a tinge of green. And then you would start to see this precipitate out onto other things. . . . [I]t would take a long time. And it wouldn’t happen in one hour, in two hours. It would take days.” Looney further stated that he monitored the pool and maintained proper chemical levels on a daily basis. The plaintiff argues that Looney’s testimony and her husband’s affidavit together establish a genuine issue of material fact regarding whether an unsafe condition had existed for such a length of time that the defendant’s employees should, in the exercise of due care, have discovered it in time to have remedied it. We disagree.

It is well established that “[o]n a question of notice, the trier’s consideration must be confined to the defendant’s knowledge and realization of the specific condition causing the injury, and such knowledge and realization cannot be found to exist from a knowledge of the general or overall conditions obtaining on the premises.” Monahan v. Montgomery, 153 Conn. 386, 390,216 A.2d 824 (1966); see also Fisher v. Big Y Foods, Inc., supra, 298 Conn. 418 n.9; Kirby v. Zlotnick, 160 Conn. 341, 344-45,278 A.2d 822 (1971); Boretti v. Panacea Co., 67 Conn. App. 223, 228, 786 A.2d 1164 (2001), cert. denied, 259 Conn. 918, 791 A.2d 565 (2002); Kurti v. Becker, 54 Conn. App. 335, 343-44, 733 A.2d 916, cert. denied, 251 Conn. 909, 739 A.2d 1248 (1999) (Landau, J., dissenting); Fuller v. First National Supermarkets, Inc., 38 Conn. App. 299, 301, 661 A.2d 110 (1995); LaFaive v. DiLoreto, 2 Conn. App. 58, 60, 476 A.2d 626, cert. denied, 194 Conn. 801, 477 A.2d 1021 (1984). The plaintiffs contention confounds that principle, as the proof submitted is bereft of evidence that she ever came into contact with the residue discovered by her husband. In moving for summary judgment, the defendant submitted the aforementioned deposition testimony of the plaintiff, in which she testified, inter alia, that (1) she encountered no residue on the ladder on June 26, 2007, (2) she did not see any residue on the ladder as she stepped down on June 27, 2007, (3) her husband had felt a residue on an underwater step, (4) she did not know if the step she slipped on was under water, (5) she did not know if the step she slipped on was the one from which the residue was discovered, (6) she did not know if the residue that her husband discovered was present on the step on which she slipped and (7) she did not know if she slipped because of a misstep with her right foot. Put simply, the attestation of the plaintiffs husband that he felt a slippery residue in the area where the plaintiff fell pertains to the general conditions of the area, which is insufficient to establish constructive notice on the part of the defendant. Likewise, Looney’s deposition testimony as to the consequences of terminating chemical treatment in the pool relates to knowledge of conditions naturally productive of a defect, rather than knowledge of the specific defect in question. Kirby v. Zlotnick, supra, 344.

Furthermore, there is no evidence before us that the allegedly defective condition existed for such a length of time that the defendant’s employees should, in the exercise of due care, have discovered it in time to have remedied it. See Kelly v. Stop & Shop, Inc., supra, 281 Conn. 777. Although Looney in his deposition stated that a residue could appear days after cessation of chemical treatment to the pool, he also testified that he had maintained proper chemical levels in the pool on a daily basis at all relevant times. In addition, the plaintiff in her deposition testimony acknowledged that she and her husband had traversed the ladder in question on the day before her fall. She testified that they did not observe any residue thereon or encounter any slippery conditions when they entered and exited the pool via the ladder at that time. In light of the foregoing, we concur with the conclusion of the court that no genuine issue of material fact existed as to whether the defendant had constructive notice of the specific condition causing the plaintiffs injuries.

In her reply brief, the plaintiff for the first time claims that this court should modify the law of premises liability in Connecticut with regard to the notice of a defect that a plaintiff must demonstrate. In particular, she asks us to eliminate the specific defect requirement, insisting that knowledge of the general conditions in the area provides sufficient notice to a defendant of the condition of the premises. For two reasons, her invitation is ill-advised. First, “[i]t is well established . . . that [c]laims . . . are unreviewable when raised for the first time in a reply brief.” SS-II, LLC v. Bridge Street Associates, 293 Conn. 287, 302, 977 A.2d 189 (2009). One rationale for that maxim is the fact that “[arguments first presented in a reply brief impair the opposing party’s opportunity to reply in writing.” State v. Rosario, 113 Conn. App. 79, 93, 966 A.2d 249, cert. denied, 291 Conn. 912, 969 A.2d 176 (2009). Such is the case here.

Second, we are mindful that our Supreme Court recently declined to consider the precise claim advanced by the plaintiff. See Riccio v. Harbour Village Condominium Assn., Inc., supra, 281 Conn. 165. In that decision, the court reaffirmed that “to recover under our current law, the plaintiff was required to prove that the defendant had had actual or constructive notice of the specific defect that caused the plaintiffs injuries.” Id., 164. It is axiomatic that this court, as an intermediate body, is bound by the decisions of our Supreme Court. See Fennelly v. Norton, 103 Conn. App. 125, 133 n.5, 931 A.2d 269, cert. denied, 284 Conn. 918, 931 A.2d 936 (2007). Accordingly, “[w]e are not at liberty to overrule or discard the decisions of our Supreme Court but are bound by them. . . . [I]t is not within our province to reevaluate or replace those decisions.” (Internal quotation marks omitted.) State v. Smith, 107 Conn. App. 666, 684-85, 946 A.2d 319, cert. denied, 288 Conn. 902, 952 A.2d 811 (2008); see also, e.g., State v. Brown, 73 Conn. App. 751, 756,809 A.2d 546 (2002) (“Our Supreme Court is the ultimate arbiter of the law in this state. We, as an intermediate appellate court, cannot reconsider the decisions of our highest court.”). Proper regard for this court’s role as an intermediate appellate tribunal mandates that we decline the plaintiffs invitation.

The judgment is affirmed.

In this opinion the other judges concurred.

       In light of our conclusion that summary judgment was appropriate on that ground, we do not address the court’s alternate basis for rendering summary judgment or the plaintiffs challenge thereto. See Valentine v. LaBow, 95 Conn. App. 436, 448 n.11, 897 A.2d 624, cert, denied, 280 Conn. 933, 909 A.2d 963 (2006).

       In their respective affidavits, Husted, Camire and Paul all averred that “[n]o one has ever complained about any slippery substance or residue being present on the pool steps where this accident is alleged to have occurred before [the plaintiff] claims she fell in June, 2007.”


author: PER CURIAM.

text:
    TIMOTHY PETTY v. COMMISSIONER OF CORRECTION
    (AC 30754)
    Harper, Robinson and Alvord, Js.
    Argued September 24
    officially released November 23, 2010

      Elisabeth Knight Adams, special public defender, for the appellant (petitioner).

      Sarah Hanna, assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Brenda Hans, assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Timothy Petty, appeals following the habeas court’s denial of his petition for certification to appeal from the judgment denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court abused its discretion by denying his petition for certification to appeal and improperly rejected his claim that his trial counsel rendered ineffective assistance. More specifically, the petitioner claims that his trial counsel rendered ineffective assistance by failing (1) to investigate certain fingerprint evidence found at a crime scene and (2) to investigate and to raise in pretrial motions the petitioner’s inability to commit the alleged crimes due to a physical infirmity. We dismiss the appeal.

The following factual and procedural history is relevant to our resolution of the petitioner’s claim. On November 1, 2004, the petitioner pleaded guilty under the Alford doctrine to four counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4). On December 20,2004, the court imposed a total effective sentence of twenty-two years of incarceration.

The petitioner filed an amended petition for a writ of habeas corpus on October 16, 2008, alleging that he was denied the effective assistance of counsel. A habeas trial was held on December 9, 2008. The petitioner presented the testimony of his trial counsel who testified that, in the course of the representation, he had investigated and reviewed the state’s evidence and apprised the petitioner of the strengths and weaknesses of the state’s evidence. He further testified that he had urged the petitioner to accept the plea offer because he believed it was in the petitioner’s best interest. The petitioner did not testify or offer any other evidence at his habeas trial.

The court denied the petition, concluding that the petitioner had failed to meet his burden of proof for a claim of ineffective assistance because the petitioner had not shown either that his trial counsel’s performance was deficient or that he was prejudiced by counsel’s performance. Subsequently, the petitioner filed a petition for certification to appeal, which the court denied on January 9, 2009. This appeal followed.

The petitioner claims that the court erred by rejecting his claim of ineffective assistance of counsel. The standard of review and legal principles that govern the resolution of the petitioner’s appeal are well settled. “In a habeas appeal, although this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . . Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits. . . .

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Citations omitted; internal quotation marks omitted.) Owens v. Commissioner of Correction, 63 Conn. App. 829, 830-31, 779 A.2d 165, cert. denied, 258 Conn. 905, 782 A.2d 138 (2001). To prevail on a constitutional claim of ineffective assistance of counsel resulting from a guilty plea, a petitioner must establish both that his counsel’s performance was deficient and that the deficient performance prejudiced him. See Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985); Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Baillargeon v. Commissioner of Correction, 67 Conn. App. 716, 721, 789 A.2d 1046 (2002). “To satisfy the performance prong, the petitioner must show that counsel’s representation fell below an objective standard of reasonableness. . . . To satisfy the prejudice prong, the petitioner must show a reasonably probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. ... A reviewing court can find against a petitioner on either ground, whichever is easier.” (Citations omitted; internal quotation marks omitted.) Baillargeon v. Commissioner of Correction, supra, 721-23. The petitioner cannot rely on mere conjecture or speculation to satisfy either the performance or prejudice prong but must instead offer some demonstrable evidence in support of his claim. See Ostolaza v. Warden, 26 Conn. App. 758, 765, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992).

After a careful review of the record, we need not consider whether counsel’s performance was deficient because we find that the petitioner did not present any evidence at the habeas hearing to satisfy the prejudice prong. Even if we assume, without deciding, that counsel’s performance was deficient, the petitioner did not present any evidence that, but for the performance of counsel, he would not have pleaded guilty but instead would have insisted on going to trial. Accordingly, we find that the court did not abuse its discretion in denying the petitioner certification to appeal because he has not demonstrated that the issue raised is debatable among jurists of reason, that a court could resolve the issue in a different manner or that the question raised deserves encouragement to proceed further. See Simms v. Warden, supra, 230 Conn. 616.

The appeal is dismissed.

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).