text:
    DELORES G. SINOTTE ET AL. v. CITY OF WATERBURY
    (AC 30304)
    Flynn, C. J., and Robinson and Mihalakos, Js.

      Argued September 17, 2009
    officially released June 1, 2010

      Justin J. Donnelly, assistant corporation counsel, for the appellant-appellee (defendant).

      Erskine D. McIntosh, for the appellees-appellants (plaintiffs).

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

   Opinion

FLYNN, C. J.

The defendant, the city of Waterbury, appeals, and the plaintiffs, Delores G. Sinotte and Brian G. Sinotte, cross appeal from the judgment of the trial court in favor of the plaintiffs, finding that the defendant had created a permanent private nuisance by way of its maintenance of a sewer line connected to the plaintiffs’ home. On appeal, the defendant claims that the court improperly determined that the plaintiffs’ private nuisance claim was not barred by the applicable statute of limitations. In their cross appeal, the plaintiffs challenge the court’s denial of their inverse condemnation, public nuisance, negligence, trespass and negligent infliction of emotional distress claims. We agree with the defendant that the plaintiffs’ private nuisance claim was barred by the statute of limitations, and we conclude that the plaintiffs’ claims are without merit. We therefore reverse in part and affirm in part the judgment of the trial court.

The record contains the following relevant facts and procedural history. The court issued two memoranda of decision in this case. The first was filed March 10, 2008, following trial. The court filed a second memorandum of decision on August 22, 2008, addressing the plaintiffs’ motion for reconsideration. In chronicling the facts and history underlying these appeals, we draw from both memoranda. The plaintiffs purchased then-home, located at 82 Old Colony Drive in Waterbury, in October, 1971. The residence is a single-family, ranch style home, which includes a finished basement consisting of a family room, laundry room and a bathroom. The home is serviced by the defendant’s sanitary sewer system; it has an eight inch lateral sewer line connected to the defendant’s fifteen inch gravity run clay sewer line, which was constructed in the 1920s and is positioned downstream of the house.

The plaintiffs have experienced a number of sewage backups in the basement of the house since owning the property. Brian Sinotte testified to various backups occurring in 1974, 1987, 1992, 1997 and 2001. In a 2002 letter to the defendant’s board of aldermen, Delores Sinotte stated that backups had occurred in 1978,1992, 1997 and 2001 and that minor incidents occurred between 1992 and 1997. There was no direct evidence before the court as to the cause of these backups. The plaintiffs received from the defendant reimbursement for damages sustained from a sewage backup in the 1970s and another on October 9, 1992. The plaintiffs also from time to time recovered proceeds from a homeowners’ insurance policy covering damages to their personal property resulting from sewage backups.

The plaintiffs made attempts to control the sewage backups by modifying the house’s plumbing. In the 1970s, the plaintiffs had Lewis Cesarello, Delores Sinot-te’s brother and the defendant’s plumbing inspector, install three backflow devices in the basement plumbing to prevent sewer backups. Cesarello also installed a clean-out drain receptacle and a cap to the lateral line. From time to time, he would also clean out and snake the eight inch lateral line. Cesarello was the only person to do work on the plumbing in the house during the plaintiffs’ ownership.

On June 17, 2001, the plaintiffs experienced a serious sewage backup. Delores Sinotte testified that during the event, the cap to the lateral line came off, allowing the sewage to enter the basement. She stated that one day after the backup, she contacted the defendant by telephone and provided it with notice of the incident. On that day, June 18, 2001, the plaintiffs filed a claim under their homeowners’ insurance policy for the losses that they had sustained as a result of the previous day’s backup. Less than six months later, Delores Sinotte sent to the defendant a letter dated December 11, 2001, in which she detailed the plaintiffs’ claim for losses due to the June 17, 2001 backup. The defendant acknowledged receipt of the plaintiffs’ claim by letter dated December 19, 2001. Delores Sinotte sent the defendant another letter, dated June 28, 2004, demanding that the defendant pay the plaintiffs’ claim regarding the June 17, 2001 incident and stating her intention to sue the defendant if it did not.

The plaintiffs commenced this action against the defendant by service of process on August 27, 2004. This was approximately three years, two months and ten days after the June 17, 2001 sewage backup. Their complaint was drawn in seven counts: negligence, trespass, private nuisance, public nuisance, inverse condemnation under the state and federal constitutions, respectively, and negligent infliction of emotional distress. The complaint referenced the sewage backup that occurred on June 17, 2001, but it did not allege any backup or other event related to the sewer system occurring after that date. In count one, which sounded in negligence, the plaintiffs alleged that the defendant was negligent in its construction and maintenance of the sewer system and that it should have known of the condition of the sewer system yet failed to repair it adequately. These allegations of negligence were repeated and realleged in each of the remaining six counts of the complaint. The plaintiffs sought monetary, compensatory and punitive damages for loss of personal property and for diminution of the value of their property as well as for emotional distress.

Following a trial to the court, the court rendered judgment for the defendant. In its first memorandum of decision, the court noted that Delores Sinotte testified to a backup that occurred in June, 2006, but that the plaintiffs had not amended their complaint to reflect this fact. The court found that the defendant “was acutely aware of the recurrent problems with the chronic sewer backup at [the plaintiffs’ residence]. In fact, current records from the water pollution control indicated that either periodic cleaning or regular maintenance was performed on the sewer main for Old Colony Drive at least fourteen times from February 25, 2002, through November 11, 2006.” The court stated that “[a]t the present time, the plaintiffs still experience gurgling in their plumbing, and, on occasion, the bathroom and kitchen sink[s] on the first and only floor of their dwelling have had sand, twigs and debris deposited from the sewer backup.”

The court concluded in this first memorandum of decision, however, that the plaintiffs’ tort claims were barred by the statutes of limitation. Taking June 17, 2001, as the date of the “latest serious incident,” the court stated that “[notwithstanding the fact that the plaintiffs had an intent to file suit and even filed notice of such with the defendant, the plaintiffs did not file suit within the three year maximum time period allowed by either [General Statutes §§] 52-577 or [52-584]. They have proffered no argument as to why the statutes should not apply or should be tolled in the present circumstances. Therefore, their common-law tort claims are time barred and unavailing.” The court also concluded that the plaintiffs’ inverse condemnation claims failed because their property retained economic value and that its use as a residence had not been substantially destroyed.

The plaintiffs thereafter filed a motion for reconsideration. They argued that the court improperly failed to consider their previously briefed position that the statutes of limitation for their negligence, trespass, nuisance and negligent infliction of emotional distress claims were tolled by operation of the continuing course of conduct doctrine. The plaintiffs also challenged the court’s determination of their inverse condemnation claim. The court granted the motion for reconsideration. In its second memorandum of decision, the court declined to reconsider its ruling with respect to the inverse condemnation count, finding that the plaintiffs neither offered any new law nor alleged any misapprehension of facts by the court to warrant reconsideration. The court found that the plaintiffs’ continuing course of conduct argument was unavailing, as no special relationship existed between the parties. The court further concluded that there was no evidence that the defendant had engaged in wrongful acts in the period between June 21, 2001, and August 27, 2004, when the plaintiffs commenced their action, that would implicate a continuing course of conduct.

Although it concluded that the continuing course of conduct doctrine did not save the plaintiffs’ common-law tort claims, the court considered a different interpretation of the plaintiffs’ argument, characterizing it as alleging that the conditions constituted a permanent private nuisance. The court found that “the gurgling noises and threat of sewage backups constitute a permanent nuisance, the limitations period for which did not begin to run until it became clear, based on repeated unsuccessful attempts at remedying the problem, that no amount of money or precaution was going to completely remove the noises, twigs and potential for large backups.” It found February 25, 2002, to be the date that the nuisance became permanent, as this was the date that the defendant began to keep detailed records of its periodic cleaning and maintenance of the sewer in the area of the plaintiffs’ property. Without specifying which specific statute applied, the court concluded that the plaintiffs’ private nuisance claim was not barred by operation of any statute of limitations.

Citing appraisal reports completed in 2004 and 2006 by certified real estate appraiser Walter J. Kloss, the court found that the fair market value of the property, which Kloss assessed at $230,000 on December 5, 2006, had been reduced by 30 percent as a result of the permanent nuisance. The court rendered judgment in favor of the plaintiffs on the private nuisance count of their complaint in the amount of $85,000. The defendant then appealed, and the plaintiffs cross appealed from the judgment. Additional facts will be supplied where necessary.

I

DEFENDANT’S APPEAL

The defendant claims that the court improperly determined that the plaintiffs’ private nuisance claim was not barred by the statutes of limitation. It argues that because the plaintiffs’ claim for nuisance was predicated on the alleged negligence of the defendant, the applicable statute of limitations is that which is contained in § 52-584. Applying the two year statute of limitations of § 52-584, the defendant maintains that the plaintiffs’ private nuisance claim was barred, as they did not commence their action within two years of February 25, 2002, the date the court determined that the nuisance became permanent. The plaintiffs argue that the court properly held that their claims were not time barred. They contend that the applicable statute of limitations is § 52-577, citing case law stating that that statute applies to all torts not enumerated in § 52-584. We agree with the defendant that the applicable statute of limitations is § 52-584, and that, applying this statute, the plaintiffs’ private nuisance claim was time barred.

A

Before addressing the question of whether the plaintiffs’ nuisance claim was time barred, we first must determine which statute of limitations governs that claim. Section 52-584 provides in relevant part: “No action to recover damages for injury to . . . real or personal property, caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . . .” The statute of limitations for general tort actions, § 52-577, provides that “[n]o action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”

The plaintiffs cite to Travelers Indemnity Co. v. Rubin, 209 Conn. 437, 441, 551 A.2d 1220 (1988), in which our Supreme Court stated that “[t]he three-year limitation of § 52-577 is applicable to all actions founded upon a tort which do not fall within those causes of action carved out of § 52-577 and enumerated in § 52-584 or another section.” (Internal quotation marks omitted.) The plaintiffs state that § 52-584 does not apply to their claims for trespass, private nuisance and public nuisance. However, the plaintiffs’ argument does not address the plain language of the statute that makes it applicable to actions to recover damages “to real or personal property, caused by negligence . . . .” General Statutes § 52-584. The plaintiffs’ private nuisance claim clearly was predicated on negligence. The complaint’s initial count, which sounded in negligence, alleged that the defendant was negligent in its construction and maintenance of the sewer system and that it should have known of the condition of the sewer system yet failed to repair it adequately. These allegations of negligence were repeated and realleged in count three, the private nuisance count. That count does not allege that the creation of the nuisance was intentional.

Our case law also supports the conclusion that § 52-584 applies here. We address two cases in turn that have as a common thread the principle that § 52-584 is the applicable statute of limitations barring negligence claims and nuisance claims arising out of negligence. In a case somewhat factually similar to the present one, the plaintiffs brought claims against the defendant municipality for, inter alia, negligence and nuisance due to serious flooding problems on the plaintiffs’ property. See Johnson v. North Branford, 64 Conn. App. 643, 646-48, 781 A.2d 346, cert. denied, 258 Conn. 926, 783 A.2d 1028 (2001). Filed in 1994, the complaint in Johnson alleged that the flooding, of which the plaintiffs became aware in 1990, resulted from the defendant’s actions in filling in a swale on a neighboring property in 1969 or 1970. Id., 644, 646-47. Following the plaintiffs’ case-in-chief, the defendant filed a motion for a directed verdict, arguing that the negligence claim was barred by § 52-584 and that §§ 52-577 and 52-584 barred the nuisance claim. Id., 644. The trial court granted the defendant’s motion for a directed verdict, after considering it sua sponte, holding that the claims were barred by the statutes of limitation. Id., 645.

On appeal, the plaintiffs in Johnson claimed that the court improperly had determined that § 52-584 barred their negligence and nuisance claims. Id., 647-48. With respect to the latter, this court noted that “because the nuisance claim is predicated on negligence, § 52-584 is the applicable statute of limitations.” Id., 648 n.10. Because the plaintiffs had notice of actionable harm resulting from the defendant’s negligent act in 1990, their action, which was commenced in July, 2004, was untimely, and, accordingly, we affirmed the judgment of the trial court. Id., 649.

In Lombard v. Edward J. Peters, Jr., P.C., 79 Conn. App. 290, 292-93, 830 A.2d 346 (2003), the plaintiffs argued that their claim for damages to personal property caused by the defendant’s negligent misidentification of the property was governed by § 52-577. This court concluded otherwise, holding that “where the plaintiffs’ claim is predicated on injury to their personal property caused by negligence, it is clear that they have brought a claim within the purview of § 52-584.” Id., 299. This reasoning applies equally to claims for damage to real property caused by negligence, as the statute makes no distinction between real and personal property.

The plain language of § 52-584 making it applicable to actions “to recover damages for injury to . . . real or personal property, caused by negligence”; General Statutes § 52-584; and the cited case law demonstrate that the plaintiffs’ claim for private nuisance was governed by that statute.

B

We turn now to the defendant’s claim that the court improperly determined that the plaintiffs’ private nuisance claim was not time barred. The question of whether a claim is barred by the statute of limitations is a question of law over which we exercise plenary review. Certain Underwriters at Lloyd’s, London v. Coopemnan, 289 Conn. 383, 407-408, 957 A.2d 836 (2008).

We initially set forth the general principles of law underlying a claim sounding in private nuisance. “[I]n order to recover damages in a common-law private nuisance cause of action, a plaintiff must show that the defendant’s conduct was the proximate cause of an unreasonable interference with the plaintiffs use and enjoyment of his or her property. The interference may be either intentional ... or the result of the defendant’s negligence. . . . Whether the interference is unreasonable depends upon a balancing of the interests involved under the circumstances of each individual case. In balancing the interests, the fact finder must take into consideration all relevant factors, including the nature of both the interfering use and the use and enjoyment invaded, the nature, extent and duration of the interference, the suitability for the locality of both the interfering conduct and the particular use and enj oyment invaded, whether the defendant is taking all feasible precautions to avoid any unnecessary interference with the plaintiffs use and enjoyment of his or her property, and any other factors that the fact finder deems relevant to the question of whether the interference is unreasonable. No one factor should dominate this balancing of interests; all relevant factors must be considered in determining whether the interference is unreasonable.” (Citations omitted.) Pestey v. Cushman, 259 Conn. 345, 361, 788 A.2d 496 (2002).

The complaint, which was served on the defendant on August 27, 2004, stated that “[o]n or about June 17th, 2001 the plaintiffs’ real property, the improvement thereon and the contents therein suffered damage by reason of offal, filth, water and/or sewage having been discharged onto, upon and in their property located at 82 Old Colony Drive, in the [cjity of Waterbury, [s]tate of Connecticut.” It alleged that the defendant had notice of the potential for backups at the property due to previous encroachments of sewage in the 1970s and 1990s and that the defendant was negligent in its construction and maintenance of the sewer system. At trial, Delores Sinotte testified that the plaintiffs experienced “sewage seepage” in their basement pipes in June, 2006. The plaintiffs did not inform the defendant of this occurrence because it caused no damage. The plaintiffs did not move at any time to amend the pleadings to include the June, 2006 incident. Indeed, in no count of the complaint did the plaintiffs allege an incursion of sewage on any date later than June 17, 2001.

In its initial memorandum of decision, the court concluded that the plaintiffs’ common-law tort claims— those sounding in negligence, trespass, private and public nuisance, and negligent infliction of emotional distress—were time barred because the action was not brought within the three year maximum time limit found in either §§ 52-584 or 52-577. Upon reconsideration, the court rejected the plaintiffs’ argument that the claims were saved through operation of the continuing course of conduct doctrine. However, alternatively considering the plaintiffs’ argument as alleging the creation of a permanent private nuisance, the court concluded that the plaintiffs had proven the elements of a private nuisance and that such nuisance was permanent. The court set February 25,2002, the date that the defendant began to keep detailed records of the periodic cleaning and regular maintenance of the sewer in the area of the plaintiffs’ home, as the date that the nuisance became permanent.

Following our thorough review of the record, we conclude that the plaintiffs’ private nuisance claim, predicated on the defendant’s alleged negligence, was time barred under § 52-584. The latest date of actionable harm pleaded by the plaintiffs was June 17, 2001, the date of the sewage backup. It was to this date that the plaintiffs thereafter were bound, not having sought to amend their pleadings at any point after commencement of the action. “The principle that a plaintiff may rely only upon what he has alleged is basic. ... It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint.” (Citations omitted; internal quotation marks omitted.) Matthews v. F.M.C. Corp., 190 Conn. 700, 705, 462 A.2d 376 (1983). The evidence was clear that the plaintiffs had notice of the defendant’s injurious act at the time it occurred; they filed a claim with their homeowners’ insurance carrier and informed the defendant of the incident on June 18, 2001. Section 52-584 requires that a claim for injury to real property resulting from negligence be brought “within two years from the date when the injury is first sustained or discovered . . . .” Given the facts pleaded in the complaint and the undisputed evidence of their awareness of actionable harm, the plaintiffs’ action, alleging a negligent private nuisance, had to be filed before June 17, 2003, in order to be timely. The plaintiffs, therefore, failed to commence their action within two years of the time they were aware of actionable harm.

We note that this outcome would not be contrary if the analysis were to be based on the February 25, 2002 date that the court set as the date when the nuisance became permanent. Employing that date, the plaintiffs were required to commence their action before February 25, 2004. Their action, brought on August 27, 2004, thus would be untimely from this date as well. We conclude that the court improperly held that the plaintiffs’ claim for private nuisance was not barred by the statute of limitations, and, accordingly, we reverse the judgment of the court.

II

PLAINTIFFS’ CROSS APPEAL

In their cross appeal, the plaintiffs claim that the court improperly (1) failed to determine that the defendant had taken their property through inverse condemnation, (2) failed to determine that the defendant had created a public nuisance and (3) held that their claims for negligence, trespass and negligent infliction of emotional distress were time barred. We disagree and will address each of the plaintiffs’ claims in turn.

A

The plaintiffs first claim that the court improperly held that the defendant had not taken their property through inverse condemnation. Specifically, they argue that the court incorrectly interpreted case law from our Supreme Court and from this court in concluding that inverse condemnation required a showing that either the fair market value of the property or the use to which the property was put, as a whole, was completely destroyed. We are not persuaded.

“Whether private property has been taken by inverse condemnation is a question of law subject to our plenary review. . . . The trial court’s conclusions must stand unless they are legally or logically inconsistent with the facts found or unless they involve the application of some erroneous rule of law material to the case. . . .

“Inverse condemnation is a cause of action against a governmental defendant to recover the value of property which has been taken in fact by the governmental defendant, even though no formal exercise of the power of eminent domain has been attempted by the taking agency. . . . An inverse condemnation claim accrues when the purpose of government regulation and its economic effect on the property owner render the regulation substantially equivalent to an eminent domain proceeding .... Accordingly, an inverse condemnation action has been aptly described as an eminent domain proceeding initiated by the property owner rather than the condemnor.” (Citations omitted; internal quotation marks omitted.) Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 83, 931 A.2d 237 (2007).

“[T]here is no taking in a constitutional sense unless the property cannot be utilized for any reasonable and proper purpose ... as where the economic utilization of the land is, for all practical purposes, destroyed. . . . A constitutional taking occurs when there is a substantial interference with private property which destroys or nullifies its value or by which the owner’s right to its use or enjoyment is in a substantial degree abridged or destroyed.” (Internal quotation marks omitted.) Id., 84.

In Bristol v. Tilcon Minerals, Inc., supra, 284 Conn. 61, Tilcon Minerals, Inc. (Tilcon), brought a claim for inverse condemnation against the city of Bristol, alleging that leachate from the city’s landfill had contaminated Tilcon’s adjacent property. Tilcon had for many years conducted mining operations on its land, and its business plan called for the eventual ceasing of mining and preparation of the land for residential development. Id., 62-63. Following a trial to the court, the trial court concluded that a constitutional taking had occurred due to the contamination of groundwater under Tilcon’s property and that “the contamination had created a stigma that substantially interfered with Tilcon’s right to use the property for thirty-one years and markedly depreciated its value.” Id., 82. The court found that the contamination did not, however, totally destroy the marketability of the property as residential lots but, rather, reduced its value by one half. Id., 82-83.

On appeal, in support of the trial court’s decision, Tilcon argued that “inverse condemnation can occur even when property has not been appropriated to the extent that no value remains, and that ‘[ejnjoyment and use of the entire property need not be completely destroyed for land to be deemed taken.’ Citino v. Redevelopment Agency, 51 Conn. App. 262, 280, 721 A.2d 1197 (1998).” Bristol v. Tilcon Minerals, Inc., supra, 284 Conn. 85. It further maintained that all practical uses of the land, including residential development, had been abrogated by the contamination and the stigma it created. Id. Our Supreme Court disagreed, stating: “Connecticut law on inverse condemnation requires total destruction of a property’s economic value or substantial destruction of an owner’s ability to use or enjoy the property. . . . Although it may be difficult to determine in certain close cases whether the alleged infringement on property rights is sufficient to constitute the type of complete taking that inverse condemnation requires, this is not such a case. Tilcon was not deprived of all reasonable and proper use of the property because the groundwater had no effect on its present mining-related activities and Tilcon introduced no evidence that the property could not be marketed for residential development even if burdened by a stigma.” (Citations omitted; emphasis added.) Id., 85-86. The court accordingly reversed the inverse condemnation judgment. Id., 86, 91.

Citing to both Bristol and Citino, the court in the present case determined that despite its history of sewage backups, the plaintiffs’ property substantially retained both economic value and its prior use as a residence. It held that notwithstanding the plaintiffs’ “understandable and significant frustration and hardship as a result of the sewage backups in their basement,” no constitutional taking had occurred. Following our review of the record and the relevant controlling case law, we cannot conclude that these conclusions of the court were legally or logically inconsistent with the facts or a result of “application of some erroneous rule of law material to the case” by the court. (Internal quotation marks omitted.) See Bristol v. Tilcon Minerals, Inc., supra, 284 Conn. 83. The evidence, including the various real estate appraisals, clearly showed that the property retained economic value. The Supreme Court in Bristol underscored “the type of complete taking” required to constitute inverse condemnation by noting that Tilcon had not been deprived of all reasonable and proper use of its property due to the groundwater contamination. Id., 85. Similarly, here, the court concluded, and we agree, that although the plaintiffs’ residential use of their property certainly was affected by the sewage backups, the interference with that use was not so substantial as to rise to the level of a constitutional taking.

B

The plaintiffs next claim that the court improperly failed to hold that the defendant had created a public nuisance. They contend that the sewage backups constituted a public nuisance because they “[interfered] with rights common to the general public; i.e., the right of the general public to use the defendant’s sewage system with safety, the right of the general public to the safe and hygienic conveyance of waste water, the right of the general public to the quiet enjoyment of their home, and the right to appropriate compensation for the taking of their property.”

“Although the existence of a nuisance generally is a question of fact, for which we invoke a clearly erroneous standard of review . . . where the court makes legal conclusions or we are presented with questions of mixed law and fact, we employ a plenary standard of review . . . .” (Citation omitted.) Kinsale, LLC v. Tombari, 95 Conn. App. 472, 479, 897 A.2d 646 (2006) (Flynn, C. J., dissenting). To prevail in a claim for public nuisance, a plaintiff must prove the following elements: “(1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of the plaintiffs’ injuries and damages.” (Internal quotation marks omitted.) Pestey v. Cushman, supra, 259 Conn. 355. In addition, the plaintiff must prove that “the condition or conduct complained of interferes with a right common to the general public. . . . Nuisances are public where they . . . produce a common injury .... The test is not the number of persons annoyed, but the possibility of annoyance to the public by the invasion of its rights. A public nuisance is one that injures the citizens generally who may be so circumstanced as to come within its influence.” (Citation omitted; internal quotation marks omitted.) Boyne v. Glastonbury, 110 Conn. App. 591, 606, 955 A.2d 645, cert. denied, 289 Conn. 947, 959 A.2d 1011 (2008).

“Whether an interference is unreasonable in the public nuisance context depends ... on (a) [w]hether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or (b) whether the conduct is proscribed by [law] .... 4 Restatement (Second), [Torts] § 821B [1979]. The rights common to the general public can include, but certainly are not limited to, such things as the right to use a public park, highway, river or lake. Id., § 821D, comment (c).” (Internal quotation marks omitted.) Pestey v. Cushman, supra, 259 Conn. 356 n.5.

The plaintiffs contend, in essence, that because the injury they suffered originated from a source shared by, or common to, other members of the general public, i.e., their sewer line, the backups constituted a public nuisance. This argument misinterprets the “common rights” component of a claim for public nuisance. The sewage backups in the plaintiffs’ basement did not “produce a common injuiy”; (internal quotation marks omitted) Boyne v. Glastonbury, supra, 110 Conn. App. 606; but instead affected only the plaintiffs’ property. The incursions do not involve the public’s health, safety, peace, comfort or convenience. Although the total number of persons affected is not dispositive, a public nuisance does not exist in instances, such as those present here, when the interference alleged was sustained only by the plaintiffs and not by other members of the public. Accordingly, the plaintiffs’ claim must fail.

C

The plaintiffs finally claim that the court improperly held their negligence, trespass and negligent infliction of emotional distress claims to be time barred. They specifically maintain that the limitations periods for each claim were tolled by the defendant’s continuing course of conduct. We disagree.

Whether the plaintiffs’ claims are barred by the applicable statutes of limitation presents a question of law to which we afford plenary review. See Certain Underwriters at Lloyd’s, London v. Cooperman, supra, 289 Conn. 407-408. “When the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed. . . . [I]n order [t]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong. . . . Where [our Supreme Court has] upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act. . . . The continuing course of conduct doctrine is conspicuously fact-bound.” (Internal quotation marks omitted.) Blinkoff v. O & G Industries, Inc., 113 Conn. App. 1, 13-14, 965 A.2d 556, cert. denied, 291 Conn. 913, 969 A.2d 175 (2009).

We conclude that the trial court properly held that the plaintiffs’ claims were not saved by the continuing course of conduct doctrine as the record does not support application of that doctrine in these circumstances. There was no “breach of a duty that remained in existence”; (internal quotation marks omitted) id., 13; after the initial alleged wrong pleaded in the complaint: the sewage incursion on June 17, 2001. To hold otherwise essentially would expand without limit the defendant’s duty toward the plaintiffs. Additionally, there was no special relationship between the plaintiffs and the defendant such as exists between an attorney and his client or a doctor and her patient. Finally, there was no later wrongful conduct of the defendant related to the initial wrong. The court specifically found that “there is no evidence that the defendant engaged in wrongful acts between the date of the last backup, which occurred in June, 2001, and the date that the plaintiffs commenced this action, on August 27, 2004, that might implicate a continuing course of conduct.” The plaintiffs’ argument to the contrary is unavailing.

The judgment is reversed only as to the private nuisance count, and the case is remanded with direction to render judgment in favor of the defendant thereon. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       During trial, the plaintiffs withdrew their claim for damages resulting from the loss of personal property.

       The defendant does not accept the court’s finding regarding the date that the nuisance became permanent, arguing in its appeal that the “cleaning of the Old Colony [Drive] sewer on February 25,2002 has nothing whatsoever to do with the creation of the nuisance nor of making the condition permanent.” According to the defendant, the operative date for statute of limitations purposes is June 17, 2001, the date of the last serious sewage backup pleaded in the complaint.

       The defendant’s appeal contains additional claims, including that the court improperly (1) concluded that the defendant had created or maintained a private nuisance, (2) allowed Cesarello to provide expert testimony, (3) determined the diminution in value to the plaintiffs’ property and (4) concluded that the plaintiffs sustained their burden of proof with regard to their assertion that they were at all relevant times in the exercise of due care. Because our conclusion that the plaintiffs’ private nuisance claim was barred by the statute of limitations resolves the defendant’s appeal, we do not reach the merits of these other claims.

       The defendant pleaded both §§ 52-577 and 52-584 in its second special defense asserting that the plaintiffs’ claims were barred by the statutes of limitation. The court, in its original memorandum of decision, held that the plaintiffs’ common-law tort claims were not brought “within the three year maximum time period allowed by either [§§] 52-577 or [52-584].” In its memorandum of decision granting the plaintiffs’ motion for reconsideration, after holding that the conditions alleged constituted a permanent nuisance and after determining the date on which the nuisance became permanent, the court concluded that “the plaintiffs’ nuisance claims are not barred by limitations, and the court vacates the portion of its previous decision in which it held that these claims were time barred.” The court did not specify which statute applied.

       In Johnson, we declined to decide whether § 52-577 also applied to the plaintiffs’ nuisance claim because the nuisance claim was based on the same operative facts as the negligence claim, and it was not clear from the record whether the trial court had directed the verdict on the ground that § 52-577 also applied. See Johnson v. North Branford, supra, 64 Conn. App. 648 n.10.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    VANCE JOHNSON v. COMMISSIONER OF CORRECTION
    (AC 30100)
    Bishop, Gruendel and Pellegrino, Js.
    Submitted on briefs March 17
    officially released June 1, 2010

      Laljeebhai R. Patel, special public defender, filed a brief for the appellant (petitioner).

      GailP. Hardy, state’s attorney, and Ronald G. Weller and Kevin J. Murphy, senior assistant state’s attorneys, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

On May 30, 2008, the habeas court, Schuman, J., dismissed the petition for a writ of habeas corpus filed by the petitioner, Vance Johnson, on the ground that it constituted a successive petition. After the petitioner filed his appeal, the court, Schuman, J., communicated in writing to counsel for the petitioner and counsel for the respondent, the commissioner of correction, by letter dated December 23,2008. The letter stated, in part: “After reading the [petitioner’s] brief, it appears that, due to the confusing state of the record in this case, I may have simply missed the fact that the petitioner attempted to raise various incompetency claims in his latest pro se petition. I therefore would have some willingness to sign a postjudgment order granting the petitioner a habeas trial on these claims.” On the basis of the contents of this letter, which this court appreciates, we conclude that the matter should be remanded for further proceedings.

The judgment is reversed and the case is remanded for further proceedings according to law.

       Practice Book § 23-29 provides in relevant part: “The judicial authority may, at any time, upon its motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that . . .
      “(3) the petition presents the same ground as a prior petition previously denied and fails to state new facts or to proffer new evidence not reasonably available at the time of the prior petition . . . .”

       The petitioner also claims that the court improperly denied his request for the appointment of counsel. In an articulation of its decision, however, the court stated that it “did not formally deny the petitioner’s request for appointment of counsel” and that it “never reached the issue of whether to appoint habeas trial counsel because the court dismissed the petition upon preliminary review pursuant to Practice Book § 23-29 (3).” Because the habeas court has stated its willingness to afford the petitioner a hearing on his petition, and, thus, no longer believes that the matter should have been dismissed pursuant to Practice Book § 23-29 (3), we are confident that the court will address the petitioner’s request for counsel.


author: BEACH, J.

text:
    STATE OF CONNECTICUT v. DRICE PICKEL
    (AC 30558)
    Bishop, Gruendel and Beach, Js.
    Argued January 21
    officially released June 1, 2010

      Christopher Y. Duby, special public defender, for the appellant (defendant).

      Brenda Hans, deputy assistant state’s attorney, with whom were Erika L. Brookman, assistant state’s attorney, and, on the brief, John C. Smriga, state’s attorney, and Marc Durso, assistant state’s attorney, for the appellee (state).
   Opinion

BEACH, J.

The defendant, Drice Pickel, appeals from the judgment of conviction, following a jury trial, of escape in the first degree in violation of General Statutes § 53a-169 (a) (2). The defendant claims that there was insufficient evidence to support his conviction. We affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant. On November 6, 2002, the defendant pleaded guilty to two counts of failure to appear in the second degree in violation of General Statutes § 53a-173 (a) (1). The court imposed a total effective sentence of one year incarceration. After serving six months and nine days of his sentence, the defendant was released on May 9, 2003, from prison to serve the remainder of his sentence in the community under the transitional supervision program. On that day, the defendant met with his correctional counselor, Pamela Buster, and signed an agreement setting forth the conditions of his transitional supervision. One condition of the defendant’s release to transitional supervision was that he was to reside at 70 Highland Avenue in Danbury, which was the residence of Arlene Blunt, the defendant’s mother, and Leland Blunt, the defendant’s stepfather and sponsor for the purposes of transitional supervision.

On May 9, 2003, the defendant moved into the Blunt residence at 70 Highland Avenue in Danbury. The defendant’s fiancee, Kimberline Jim, who was then pregnant with the defendant’s child, also resided at the residence. The child was bom on June 27, 2003, and remained in the hospital for some time thereafter. Friction existed between Jim and Arlene Blunt. Reportedly, Jim would not help out around the house after Arlene Blunt had broken her femur in November, 2002. This friction escalated on July 6, 2003, when Jim told Arlene Blunt that she “doesn’t have to help [Arlene Blunt].” Arlene Blunt told Jim to “get out.” Leland Blunt also told Jim “to leave right then and there.” Afterward, Jim informed the defendant of the situation, and he spoke with the Blunts. The defendant “[stuck] up for [Jim],” and the discussion became heated. Leland Blunt told the defendant that “[i]f he could not abide by [Arlene Blunt’s] and my decision, then pack your bags and get out.”

That evening, the defendant and Jim left 70 Highland Avenue and repaired to the Bethel Motor Lodge in New-town. The defendant testified that he did not contact Buster before he left the residence because it was 7:30 p.m., and “[t]here was no way to contact her.” The defendant and Jim stayed at the motor lodge for approximately one and one-half weeks before they moved to a condominium in Danbury. After they moved to Dan-bury, their newborn son finally was released from the hospital. After staying at the condominium for a few days, the defendant, Jim and the child left the state and went to Arizona. Jim testified that she and the defendant went to Arizona because their newborn son was ill, and she could receive free medical care for their son on the Navajo reservation, where she had lived for most of her life.

When the defendant failed to report to Buster, she attempted unsuccessfully to contact him. The defendant was arrested approximately three years later and was charged in May, 2006, by way of long form information with escape in the first degree. In the information, the state alleged that “on or about July 2003, the said defendant escaped from a . . . community residence, to wit: the Community Residence Program (Transitional Supervision) located at 70 Highland Avenue, located in Danbury, Connecticut, to which he was transferred . . . .” Following a jury trial, the defendant was convicted of escape in the first degree. This appeal followed.

It is uncontradicted that the defendant left 70 Highland Avenue on approximately July 6, 2003, and at trial the parties stipulated that at the time of that incident, the defendant was in the custody of the commissioner of correction (commissioner). The defendant claims that there was insufficient evidence to demonstrate that he intended to escape from the custody of the commissioner. He argues that he was required to reside at 70 Highland Avenue as a condition of his release from prison and that he was also required to comply with his sponsor’s wishes. He contends that he left the Highland Avenue residence in order to comply with his sponsor’s wishes, and, therefore, he did not leave the residence with the requisite intent. He argues that his act of leaving the residence constituted, at most, a failure to comply with the condition of his transitional supervision that he reside at 70 Highland Avenue and did not constitute the crime of escape. We disagree.

“In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Na’im B., 288 Conn. 290, 295-96, 952 A.2d 755 (2008).

“It is well established that the question of intent is purely a question of fact. . . . Intent may be, and usually is, inferred from the defendant’s verbal or physical conduct. . . . Intent may also be inferred from the surrounding circumstances. . . . The use of inferences based on circumstantial evidence is necessary because direct evidence of the accused’s state of mind is rarely available. . . . Intent may be gleaned from circumstantial evidence such as . . . the events leading up to and immediately following the incident.” (Internal quotation marks omitted.) State v. Saez, 115 Conn. App. 295, 302-303, 972 A.2d 277, cert. denied, 293 Conn. 909, 978 A.2d 1113 (2009).

Section 53a-169 (a) provides in relevant part: “A person is guilty of escape in the first degree ... (2) if he escapes from any . . . community residence to which he was transferred pursuant to subsection (e) of section 18-100 . . . .” “The unifying overall theme of § 53a-169 is that an individual will risk punishment for escape for an unauthorized departure from, or failure to return to, whatever may be designated as his place of incarceration or confinement. That theme illuminates the meaning of § 53a-169 (a) (2). . . . Read in context, § 53a-169 (a) (2) simply identifies another environment—a community residence—from which an unauthorized departure, or to which a failure to return, is possible and made culpable. . . . [Section] 53a-169 (a) (2) employs the term escape to contemplate an unauthorized departure from, or failure to return to, a community residence.” (Citations omitted; internal quotation marks omitted.) State v. Lubus, 216 Conn. 402, 409, 581 A.2d 1045 (1990).

Escape is a general intent crime. All that is necessary to prove the element of intent is that the defendant have the general intent to perform the acts that constitute the offense, namely, an unauthorized departure from, or failure to return to, a community residence. See id., 408 (“escape” in § 53a-169 [a] [2] incorporates misconduct commonly understood as unauthorized departure from custodial constraints); see also 27A Am. Jur. 2d 789, Escape § 3 (2008) (“the culpable mental state for escape from custody is established if the defendant acted purposely or knowingly”); 30A C.J.S. 495-96, Escape § 10 (2007) (mental element required is “an intent to escape or to avoid legal confinement or to evade the due course of justice”; specific intent not required); 4 C. Tortia, Wharton’s Criminal Law (15th Ed. 1996) § 638, p. 449 (required mental state for escape is “intent to accomplish without authority a prisoner’s liberation from legal custody”).

Under the facts of this case, the charged act or acts constituting escape include the unauthorized departure from or failure to return to the defendant’s designated place of confinement, 70 Highland Avenue. See State v. Lubus, supra, 216 Conn. 409. It is uncontested that the defendant physically absented himself from his designated place of confinement, i.e., 70 Highland Avenue. There was testimony from Leland Blunt indicating that the defendant voluntarily chose to leave rather than to abide by the Blunts’ wishes regarding Jim. Leland Blunt testified that “exactly what” he told the defendant was that “[i]f he could not abide by [Arlene Blunt’s] and my decision, then pack your bags and get out.” The jury reasonably could have found that the defendant’s sponsor did not require him to leave the residence, and, thus, the defendant was not faced with a situation in which he was forced to violate the residency condition of his transitional supervision in order to comply with his sponsor’s wishes.

Furthermore, the jury reasonably could have concluded that the defendant’s conduct after he left 70 Highland Avenue further evidenced his intent to escape. The defendant and Buster both testified that after June 30, 2003, the defendant stopped reporting to her in person. Moreover, the defendant physically absented himself from the state shortly after leaving the Highland Avenue residence and went to Arizona. He did so without Buster’s knowledge or permission. The jury reasonably could have found that the defendant’s leaving the designated community residence, failure to return to the community residence and subsequent departure to Arizona demonstrated his intent to escape from the custody of the commissioner.

For the foregoing reasons, there was sufficient evidence to support the defendant’s conviction of escape.

The judgment is affirmed.

In this opinion the other judges concurred.

       See General Statutes § 18-100c.

       Whether the defendant was absolutely or conditionally ordered out of the residence by his mother or stepfather was a disputed issue at trial. The jury, of course, was entitled to resolve this factual issue.

       Jim testified that she contacted Buster once after leaving the Highland Avenue residence. Buster testified, however, that the defendant did not call to tell her that he had moved out of 70 Highland Avenue. Once the defendant failed to report, Buster made efforts to contact him. She telephoned the defendant at the Highland Avenue residence and on his cellular telephone, leaving messages asking the defendant to contact her. She did not receive any return calls from the defendant. Leland Blunt testified that he telephoned Buster and informed her that it was his belief that the defendant had left the state and had gone to Arizona.

       To the extent that this claim is unpreserved, the defendant seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and the plain error doctrine. See Practice Book § 60-5. It is well established that the defendant’s claim is reviewable without resorting to either of these doctrines. “[A]ny defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right, and would therefore necessarily meet the four prongs of Golding. Accordingly, we conclude that no practical reason exists to engage in a Golding analysis of a sufficiency of the evidence claim and, thus, review the challenge as we do any other properly preserved claim." (Internal quotation marks omitted.) State v. Torres, 111 Conn. App. 575, 579, 960 A.2d 573 (2008), cert. denied, 290 Conn. 907, 964 A.2d 543 (2009).

       The defendant also claims that his leaving Connecticut to go to Arizona could not constitute an escape because the state did not prove that he left for Arizona while on transitional supervision. We need not address this argument because the designated community residence was the only place from which the defendant technically could escape, and there was sufficient evidence that he intended to escape from that residence.

       “General intent is the term used to define the requisite mens rea for a crime that has no stated mens rea; the term refers to whether a defendant intended deliberate, conscious or purposeful action, as opposed to causing a prohibited result through accident, mistake, carelessness, or absent-mindedness.” (Internal quotation marks omitted.) State v. Larsen, 117 Conn. App. 202, 208 n.4, 978 A.2d 544, cert. denied, 294 Conn. 919, 984 A.2d 68 (2009).

       Leland Blunt explained, on direct examination by defense counsel, that the defendant “was talking about how [Jim] had no place to go [and that] the baby was in the hospital. . . . And I said . . . well, the baby can stay here. [Jim] has to go. We got into a heated discussion, and I said, well, pack your bags and get out.” Leland Blunt later clarified that “exactly what” he told the defendant was that “[i]f he could not abide by [Arlene Blunt’s] and my decision, then pack your bags and get out.” On cross-examination, Leland Blunt testified that the “problem” he was having was with Jim, not the defendant. The state inquired: “[The defendant] didn’t have to get out, did he?” In response to this question, Leland Blunt stated: “[I]f [the defendant] did not abide by [Arlene Blunt’s] and my decision, yes, he had to get out.”
      To the extent that there is conflicting evidence in the record, the jury was not required to credit it. “[E]vidence is not insufficient . . . because it is conflicting or inconsistent. ... It is the [jury’s] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses. . . . The [jury] can . . . decide what—all, none, or some—of a witness’ testimony to accept or reject.” (Internal quotation marks omitted.) State v. Wortham, 80 Conn. App. 635, 642, 836 A.2d 1231 (2003), cert. denied, 268 Conn. 901, 845 A.2d 406 (2004).

       The defendant testified that he “attempt[ed]” to contact Buster after leaving the Highland Avenue residence but admitted, however, that he stopped reporting to her in person after June 30, 2003. Buster testified that to the best of her knowledge, the defendant made no attempt to contact her. She testified that she left telephone messages in an attempt to contact the defendant after he stopped reporting but that she did not receive any return telephone calls from the defendant.

       The defendant and Jim left 70 Highland Avenue around July 6, 2003. From Jim’s testimony, the jury could have inferred that the defendant and Jim went to Arizona in late July, 2003. Jim testified that they stayed at a hotel for “almost a week and a half,” and then went to a condominium where they stayed for a “few days” before leaving for Arizona.

       The act of deliberately leaving custodial restraint constitutes the gravamen of the crime of escape. If a defendant “merely” violates a condition of transitional supervision, he could immediately be returned to a correctional institution. See General Statutes § 18-100. A defendant can violate a condition of release without escaping, but the fact that one act violates a condition of release, of course, does not mean that the act is not also an escape. On the facts of this case, the designated community residence was the only physically named place from which the defendant technically could escape from the custody of the commissioner.


author: HARPER, J.

text:
    IWONA DE REPENTIGNY v. MICHAEL G. DE REPENTIGNY
    (AC 30548)
    Harper, Lavine and Pellegrino, Js.

      Argued December 1, 2009
    officially released June 1, 2010

      William F. Gallagher, with whom, on the brief, was Todd R. Bainer, for the appellant (plaintiff).

      Michael G. de Repentigny, pro se, the appellee (defendant).
   Opinion

HARPER, J.

This appeal stems from the judgment dissolving the marriage of the plaintiff, Iwona de Repentigny, and the defendant, Michael G. de Repentigny. On appeal, the plaintiff claims that (1) the court acted improperly by allowing a lengthy period of time to elapse between the first two days of trial and the last two days of trial, (2) the court improperly refused to permit closing arguments to be made orally, (3) the court improperly failed to find the defendant in contempt for allegedly violating automatic orders and (4) the court’s financial orders were unreasonable under the circumstances. We affirm the judgment of the trial court. We address each of the plaintiffs claims in turn, and set forth facts and proceedings that are relevant to the disposition of this appeal as necessary.

I

The plaintiff first claims that the court acted improperly by allowing a lengthy period of time to elapse between the first two days of trial and the last two days of trial. We disagree.

The parties’ divorce trial began on February 13, 2008. On that day, the plaintiff, through her counsel, began to present her case and called two witnesses. The first witness was a woman with whom the court found that the defendant had had an ongoing sexual affair during the parties’ marriage. Next, the plaintiffs counsel called the plaintiff as a witness. The court recessed before the defendant’s counsel could finish her cross-examination of the plaintiff. The following day, February 14, 2008, the defendant’s counsel continued her cross-examination of the plaintiff. The plaintiffs counsel began redirect examination but he was unable to finish his examination before the end of the day. The court discussed scheduling the next date for the trial with both parties. The date of March 25, 2008, was initially considered; however, the court stated that it was unsure that this date would allow for enough time to resolve several procedural and discovery issues. The clerk of the court then suggested April 30, 2008, and June 25, 2008, as potential dates, to which the plaintiffs counsel responded by asking, “Do we have any chance of getting two dates back to back?” Upon the request of the plaintiffs counsel that the trial be rescheduled to a time when two consecutive days would be available, the court scheduled the trial to resume June 25,2008, noting that June 26 and 27 would also be available if more time was required.

At the time of the court’s ruling, neither the plaintiff nor her counsel made any objection to waiting until June 25, 2008, to continue the trial. No objection was filed with the court between February 14 and June 25, 2008. The trial resinned on the morning of June 25, 2008. At this time, the plaintiffs counsel made an oral motion for a mistrial. The plaintiffs counsel argued that because he had already presented a major part of the plaintiffs case on the first two days of trial, the defendant, having had several months to “look at [the plaintiffs] case and prepare for trial,” was at an “advantage.” The court orally denied the motion for a mistrial. The plaintiffs counsel raised the objection once more that day, during the defendant’s counsel’s recross-examination of the plaintiff. In response, the court made the following statement: “You’re not going to get a mistrial based on a continuance. Unfortunately, many family trials span a lot more time than the judges wish.”

Although the plaintiff, in her brief, concedes that “there is no Connecticut statute or rule which per se prohibits such an inordinate delay in the conclusion of a trial”; (emphasis in original); she nevertheless claims on appeal that the delay in the middle of her divorce trial violated her right, under article first, § 10, of our state constitution to have “justice administered without sale, denial or delay.” “[T]he matter of a continuance is traditionally within the discretion of the trial judge which will not be disturbed absent a clear abuse.” (Internal quotation marks omitted.) State v. Williams, 200 Conn. 310, 320, 511 A.2d 1000 (1986). Although the plaintiff attempts to frame the issue of the length of the continuance as a constitutional claim, in Williams our Supreme Court held that not every determination regarding a continuance violates due process. Thus, the propriety of a continuance “is to be found in the circumstances present in every case.” Id. To establish an abuse of discretion as to a court’s determination in regard to a continuance, the plaintiff must show that her ability to present her case was prejudiced demonstrably by the length of the continuance. See State v. Day, 233 Conn. 813, 847, 661 A.2d 539 (1995).

As the defendant notes in his brief, the court proposed earlier dates on which to reconvene the trial, but it was the plaintiffs counsel who expressed a preference for scheduling the trial at a time when two consecutive days were available. Taking the plaintiffs preference into consideration, the court accommodated her and scheduled the next day of the trial on a date when three consecutive days were available if needed. Although the plaintiff has claimed that the defendant was given a tactical advantage, she has not indicated any specific instances of prejudice resulting from the length of the continuance. Accordingly, we hold that the court did not abuse its discretion.

II

The court denied the request of the plaintiffs counsel to make an oral closing argument. On appeal, the plaintiff claims that the court’s refusal was in violation of our rules of practice. We disagree.

In her brief submitted to this court, the plaintiff notes that Practice Book § 15-5 (a) (4) states that “[t]he plaintiff shall be entitled to make the opening and final closing arguments.” The plaintiff, however, has neglected to include the introductory language of the rule, which states: “Unless the judicial authority for cause permits otherwise, the parties shall proceed with the trial and argument in the following order . . . .” (Emphasis added.) Practice Book § 15-5 (a). Thus, when the previously discussed language is read together, Practice Book § 15-5 (a) actually reads as follows: “Unless the judicial authority for cause permits otherwise, the parties shall proceed with the trial and argument in the following order ... (4) The plaintiff shall be entitled to make the opening and final closing arguments. ...”

The interpretation of rules of practice and statutes is a question of law subject to plenary review. Tocco v. Wesleyan University, 112 Conn. App. 28, 31, 961 A.2d 1009 (2009). Subdivisions (1) through (5) of Practice Book § 15-5 (a) prescribe a certain procedure to be followed in civil trials and family matters. The clear import of the introductory language is that the court may depart from this prescribed trial procedure “for cause . . . .” Practice Book § 15-5 (a). Therefore, in civil and family cases, a trial court may, for cause, elect to accept legal briefs in lieu of oral closing arguments.

We have held previously that, when considering whether there was cause for a court to change the order of arguments prescribed in Practice Book § 15-5 (a), we review the decision of the court under the abuse of discretion standard. In Dinan v. Marchand, 91 Conn. App. 492, 881 A.2d 503 (2005), aff'd, 279 Conn. 558, 903 A.2d 201 (2006), this court held that a plaintiff “bears a heavy burden in demonstrating that the court abused its broad discretion in its ordering of closing arguments. ... In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.” (Internal quotation marks omitted.) Id., 507. In light of this precedent, and given the fact that the departure from procedure involves the same rule of practice contemplated by the court in Dinan, we conclude that our review of whether the court had cause to accept briefs in lieu of oral argument also should be made using the abuse of discretion standard.

The parties met on July 7, 2008, to discuss several posttrial matters. The plaintiffs trial counsel informed the court that he wanted to make oral closing arguments. The court offered to allow counsel to make a closing argument on July 14, 2008, the date on which the court had ordered posttrial briefs to be submitted. The defendant’s trial counsel then indicated to the court that she believed that closing arguments, in addition to the posttrial briefs, would be cumulative and unnecessary. The court indicated its preference to conclude the trial expeditiously, given the lengthy period of time that had elapsed between the first two days of trial and the final two days of trial, and expressed concern about unnecessarily prolonging the process in order to find a date on which counsel for both sides would be available to appear. Given our determination that the trial court’s decision is to be afforded every reasonable presumption in favor of its correctness, we find that any of the aforementioned reasons reasonably justified the court’s decision not to allow oral closing arguments and instead to accept posttrial briefs. Accordingly, we conclude that the court did not abuse its discretion in accepting briefs in lieu of oral closing arguments.

Ill

The plaintiff next claims that the court improperly declined to hold the defendant in contempt for violating the automatic order provisions of Practice Book § 25-5. Specifically, the plaintiff alleges that the defendant violated the automatic orders by withdrawing approximately $50,000 from the parties’ joint accounts after she had commenced this dissolution action. We decline to review this claim.

“It is the appellant’s responsibility to provide an adequate record for review. Practice Book § 60-5. The appellant shall determine whether the entire trial court record is complete, correct and otherwise perfected for presentation on appeal. . . . Practice Book § 61-10. Conclusions of the trial court cannot be reviewed where the appellant fails to establish through an adequate record that the trial court incorrectly applied the law or could not reasonably have concluded as it did. ... An appellant’s utilization of the motion for articulation serves to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal. . . . Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court, either on its own or in response to a proper motion for articulation, any decision made by us respecting this claim would be entirely speculative.” (Internal quotation marks omitted.) Gilbert v. Gilbert, 73 Conn. App. 473, 476-77, 808 A.2d 688 (2002).

Practice Book § 25-5 (a) provides in relevant part: “The following automatic orders shall apply to both parties, with service of the automatic orders to be made with service of process of a complaint for dissolution of marriage ... (1) Neither party shall sell, transfer, encumber . . . conceal, assign, remove, or in any way dispose of, without the consent of the other party in writing, or an order of a judicial authority, any property, individually or jointly held by the parties, except in the usual course of business or for customary and usual household expenses or for reasonable attorney’s fees in connection with this action. . . .” On October 31, 2007, the plaintiff filed a motion for contempt, alleging that the defendant had “unilaterally misappropriated” joint marital assets. It is well established that “[a] court must decline to hold a party in contempt if the facts are not established by sufficient proof that is premised upon competent evidence presented to the trial court in accordance with the rules of procedure as in ordinary cases.” (Internal quotation marks omitted.) Gilbert v. Gilbert, supra, 73 Conn. App. 477 n.2. Also, a court may, in its sound discretion, “deny a claim for contempt when there is an adequate factual basis to explain the failure to honor the court’s order.” (Internal quotation marks omitted.) Sablosky v. Sablosky, 258 Conn. 713, 718, 784 A.2d 890 (2001).

In its September 11, 2008 memorandum of decision, the court summarily denied the plaintiffs request to hold the defendant in contempt. The court found: “There is no evidence that the plaintiff established each of the elements required for such a [finding of contempt].” The court did not explain the rationale it used to determine that the defendant was not in contempt, and the plaintiff did not file a motion for articulation. Therefore, we have no record that would permit us to review the factual basis of the court’s decision. Because the plaintiff has failed to establish through an adequate record that the court incorrectly applied the law or could not reasonably have concluded as it did, we decline to review this claim.

IV

The plaintiff next claims that the court’s financial orders constituted an abuse of discretion. We disagree.

The plaintiff takes issue with several specific orders issued by the court in its dissolution judgment. In its memorandum of decision, the court awarded the defendant ownership of a business that the parties had operated together for eleven years called “de Assembly.” The court granted the plaintiff time limited alimony and, as part of this order, instructed the defendant to pay one half of the net income of de Assembly to the plaintiff in addition to a sum of $650 per week for a period of five years. The plaintiff claims that the court’s orders were unreasonable “because the effect of the combined orders was to leave the plaintiff with an inability to provide financially for herself while at the same time denying an award of lifetime alimony to her.” We disagree.

First we set forth our standard of review. “A fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria. ... 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. ... 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. . . . This standard of review reflects the sound policy that the trial court has the opportunity to view the parties first hand and is therefore in the best position to assess all of the circumstances surrounding a dissolution action, in which such personal factors such as the demeanor and the attitude of the parties are so significant.” (Citations omitted; internal quotation marks omitted.) Quasius v. Quasius, 87 Conn. App. 206, 208, 866 A.2d 606, cert. denied, 274 Conn. 901, 876 A.2d 12 (2005).

“Time limited alimony is often awarded. [Our Supreme Court] has dealt with challenges to an award of time limited alimony on numerous occasions. . . . The trial court does not have to make a detailed finding justifying its award of time limited alimony. . . . Although a specific finding for an award of time limited alimony is not required, the record must indicate the basis for the trial court’s award. . . . There must be sufficient evidence to support the trial court’s finding that the spouse should receive time limited alimony for the particular duration established. If the time period for the periodic alimony is logically inconsistent with the facts found or the evidence, it cannot stand. . . . In addition to being awarded to provide an incentive for the spouse receiving support to use diligence in procuring training or skills necessary to attain self-sufficiency, time limited alimony is also appropriately awarded to provide interim support until a future event occurs that makes such support less necessary or unnecessary.” (Internal quotation marks omitted.) Radcliffe v. Radcliffe, 109 Conn. App. 21, 29, 951 A.2d 575 (2008).

In the present case, the court found that the plaintiff, a forty year old high school graduate, is “bright, articulate and motivated. She is capable of finding meaningful employment.” The court went on to find that “[b]ased upon the statutory factors, including the ages of the parties, their education, earnings, as well as the length of the marriage, health, the causes for the breakdown of the marriage, retirement assets and work experience, a time limited alimony award is appropriate.” The court’s ruling reflects that it properly considered the relevant criteria.

In regard to its decision to grant ownership of de Assembly to the defendant, the court found that “ [throughout the marriage, although both parties made contributions to the acquisition, maintenance and reservation of this asset, the evidence clearly supports a finding that the defendant’s contribution was significantly greater.” Given the court’s findings regarding the level of the respective parties’ involvement with and management of de Assembly, and the inherent difficulty one could expect were a divorced couple required to operate a business together, we will not second-guess the court’s decision to grant ownership of de Assembly to the defendant.

The plaintiff also claims that the court’s judgment was unreasonable because by “[ordering] that the plaintiff forfeit half of any earnings which she may realize should she attempt to start a business similar to that of de Assembly, [the court deprived] the plaintiff of the ability to support herself.” The plaintiffs argument in this regard is in reference to the section of the court’s decision concerning ownership of de Assembly, which states: “Should the plaintiff establish a business similar to de Assembly, she shall forfeit her receipt of one half of the net proceeds therefrom.” In her brief, the plaintiff interprets this sentence to mean that should she establish a business similar to de Assembly, she is required to pay to the defendant one half of the proceeds she receives from her new business. Accordingly, she claims that “[a]t a minimum, the trial court should have crafted its order discouraging the plaintiff from starting up a competing business with a reasonable length of time and geographic range limitations included in the order.”

During oral argument before this court, the plaintiffs appellate counsel conceded that he may have read the judgment incorrectly and that the court could have intended, in its usage of the phrase “proceeds therefrom,” to refer to the proceeds that the plaintiff was to receive from de Assembly as part of her time limited alimony. Given the central role that the plaintiffs interpretation of this order plays in the plaintiffs general claim that the court’s orders as a whole were unreasonable, it is incumbent on us to construe the court’s order. “[T]he construction of a judgment is a question of law for the court. ... As a general rule, judgments are to be construed in the same fashion as other written instruments. . . . The determinative factor is the intention of the court as gathered from all parts of the judgment. . . . The interpretation of a judgment may involve the circumstances surrounding the making of the judgment. . . . Effect must be given to that which is clearly implied as well as that which is expressed. ... In doing so, it assists a reviewing court to keep in mind the theory on which the case was tried and on which the trial court decided it.” (Citations omitted; internal quotation marks omitted.) Steiner v. Middlesex Mutual Assurance Co., 44 Conn. App. 415, 428, 689 A.2d 1154 (1997).

On the basis of the court’s findings supporting its division of property and the time limited alimony award, we conclude that the phrase “one half of the net proceeds therefrom” refers to one half of the net proceeds that the plaintiff is to receive from de Assembly as part of her time limited alimony. The plaintiffs interpretation of the court’s order, posited in her brief, as a general noncompetition requirement of indeterminate length, is incongruous with the expressed general intent of the judgment that the plaintiff continue to receive a benefit from de Assembly for a limited period of time. Due to the court’s determination that the plaintiff should continue to receive a financial benefit from de Assembly, it is entirely sensible that the court required her to forfeit such benefit should she engage in a competing enterprise. The plaintiff may engage in a similar business at the peril of forfeiting her alimony award as it pertains to the proceeds of de Assembly. Based on our interpretation of the court’s order regarding the plaintiffs ability to engage in a competing enterprise, the plaintiffs argument that this particular order contributed to the overall unreasonableness of the judgment is premised on an incorrect interpretation of the court’s judgment. Given the court’s findings supporting its division of property and the time limited alimony award, and our interpretation of the court’s order regarding the plaintiffs ability to engage in an enterprise that competes with de Assembly, we conclude that the court did not abuse its discretion in issuing its financial orders.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 25-54 provides that Practice Book § 15-5 shall apply to family matters.


text:
    IN RE JOHNSON R. ET AL.

    (AC 31028)
    Bishop, Gruendel and Schaller, Js.
    Argued March 8
    officially released June 1, 2010

      David J. Reich, for the appellant (respondent father).

      Colleen B. Valentine, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

      Sam Christodlous, for the minor children.

      Deborah T. Vilcheck, guardian ad litem for the minor children.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

PER CURIAM.

The respondent father appeals from the judgments of the trial court rendered in favor of the petitioner, the commissioner of children and families, terminating his parental rights with respect to his minor children, J, A and M. On appeal, the respondent claims that the court (1) improperly found that it would be in the best interests of the children to terminate his parental rights and (2) violated his procedural due process rights when it failed to require the department of children and families (the department) to include his guardian ad litem in the reunification process. We affirm the judgments of the trial court.

I

The respondent’s first claim is that the court improperly found that it would be in the best interests of the children to terminate his parental rights. Specifically, the respondent argues that during the dispositional phase of the trial, the court improperly applied the statutory factors set forth in General Statutes § 17a-112 (k) in determining that it was in the children’s best interests to terminate his parental rights. We disagree.

“A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. ... In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights [under § 17a-112 (j)] exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase.” (Internal quotation marks omitted.) In re Keyashia C., 120 Conn. App. 452, 455, 991 A.2d 1113 (2010). “In the dispositional phase of a termination of parental rights hearing, the trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent’s parental rights is not in the best interest of the child. In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in [§ 17a-112 (k)]. . . . [Once] the court finds that the petitioner has proven by clear and convincing evidence that one of the statutory grounds for termination of parental rights exists, it must then determine whether termination is in the best interests of the child. . . . The best interests of the child include the child’s interests in sustained growth, development, well-being and continuity and stability of its environment. . . .

“Pursuant to § 17a-112 (k), the statutory factors used to determine whether termination is in the child’s best interest include: (1) The timeliness, nature and extent of services offered ... (2) whether the [department . . . has made reasonable efforts to reunite the family ... (3) the terms of any applicable court order entered into . . . and the extent to which all parties have fulfilled their obligations under such order; (4) the feelings and emotional ties of the child with respect to the child’s parents . . . and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (5) the age of the child; (6) the efforts the parent has made to adjust such parent’s circumstances, conduct, or conditions to make it in the best interest of the child to return such child home in the foreseeable future . . . and (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child ... or by the economic circumstances of the parent.” (Citations omitted; internal quotation marks omitted.) In re Tremaine C., 117 Conn. App. 590, 600-601, 980 A.2d 330, cert. denied, 294 Conn. 920, 984 A.2d 69 (2009).

“Our standard of review on appeal from a termination of parental rights is limited to whether the challenged findings are clearly erroneous. ... A finding is clearly erroneous when either there is no evidence in the record to support it, or the reviewing court is left with the definite and firm conviction that a mistake has been made. . . . [GJreat weight is given to the judgment of the trial court because of [the trial court’s] opportunity to observe the parties and the evidence. . . . [An appellate court does] not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. . . . [Rather] every reasonable presumption is made in favor of the trial court’s ruling.” (Internal quotation marks omitted.) In re Sole S., 119 Conn. App. 187, 191, 986 A.2d 351 (2010).

We have examined the record and briefs and have considered the arguments of the parties. The thorough and well reasoned memorandum of decision sets forth detailed findings of fact that find support in the record and are neither clearly erroneous nor contrary to the law. The court, in granting the petitions to terminate the respondent’s parental rights, properly considered the statutory factors set forth in § 17a-112 (k). Therefore, it was not clearly erroneous for the court to have found that it was in the best interests of the children to terminate the parental rights of the respondent.

II

The respondent next claims that the court violated his procedural due process rights when it failed to require the department to include his guardian ad litem in the reunification process. Essentially, the respondent is arguing that the court, sua sponte, should have ordered the department to “engage” the respondent’s guardian ad litem during the reunification process. We conclude that the record is inadequate to review the merits of this claim.

Because the respondent did not preserve his claim at trial, he requests review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Under Golding, a party “can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the [respondent] of a fair trial; and (4) if subject to harmless error analysis, the [petitioner] has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id.

In the present case, the respondent’s claim fails under the first prong of Golding because the record is inadequate for review. The court’s memorandum of decision states that the respondent on June 19, 2008, was found incompetent and not restorable to competency. The respondent has failed to provide this court with any transcripts, exhibits, memorandum of decision or motion for articulation from such hearing. “The [respondent] bears the responsibility for providing a record that is adequate for review of his claim of constitutional error. If the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred, we will not attempt to supplement or reconstruct the record, or to make factual determinations, in order to decide the [respondent’s] claim.” (Internal quotation marks omitted.) In re Giovanni C., 120 Conn. App. 274, 276 n.2, 991 A.2d 642 (2010).

Accordingly, we do not have any basis for evaluating whether due process required the court, sua sponte, to order the department to work with the respondent’s guardian ad litem during the reunification process. See In re Jessica B., 50 Conn. App. 554, 575, 718 A.2d 997 (1998) (“[o]nce the trial court was persuaded, on the basis of the testimony of the court-appointed psychiatrist, that the respondent was in fact incompetent, it was in a position to determine the most appropriate and beneficial course of action to meet the requirements of due process”).

The judgments are affirmed.

       The court terminated the parental rights of the children’s mother in the same proceeding. She has not appealed from those judgments of termination. We therefore refer to the respondent father as the respondent in this opinion.

       We note that “[i]n the termination setting, only General Statutes § 45a-708 (a) addresses the competency issue. That provision requires that a guardian ad litem be appointed for a parent who ‘appears’ to be a minor or incompetent. The plain language of § 45a-708 (a) does not provide for an evidentiary hearing, nor does it require any particular measures beyond appointment of a guardian to protect the rights of an incompetent person facing the termination of parental rights.” In re Alexander V., 223 Conn. 557, 562, 613 A.2d 780 (1992).
      “By definition, a mentally incompetent person is one who is unable to understand the nature of the termination proceeding and unable to assist in the presentation of his or her case.” Id., 563. “[D]ue process does not require a competency hearing in all termination cases but only when (1) the parent’s attorney requests such a hearing, or (2) in the absence of such a request, the conduct of the parent reasonably suggests to the court, in the exercise of its discretion, the desirability of ordering such a hearing sua sponte. In either case, the standard for the court to employ is whether the record before the court contains specific factual allegations that, if true, would constitute substantial evidence of mental impairment. . . . Evidence is substantial if it raises a reasonable doubt about the [parent’s] competency . . . .” (Citations omitted; internal quotation marks omitted.) Id., 566.