author: DiPENTIMA, J.

text:
    PHILIP E. LEFEBVRE v. JONI ZARKA ET AL.
    (AC 28374)
    DiPentima, Lavine and Hennessy, Js.

      Argued October 18, 2007
    officially released February 26, 2008

      John R. Williams, for the appellant-appellee (plaintiff).

      William J. Melley III, for the appellees-appellants (named defendant et al.).

      Joseph V. Meaney, Jr., for the appellee-appellant (defendant Adriana Almada).
   Opinion

DiPENTIMA, J.

The plaintiff, Philip E. Lefebvre, appeals from the judgment of the trial court rendered following the granting of motions for summary judgment in favor of the defendants, Joni Zarka, Alexander Zarka and Adriana Almada. On appeal, the plaintiff claims that the court improperly granted the motions for summary judgment because disputed issues of material fact exist. We affirm the judgment of the trial court.

The following facts are undisputed and relevant to the claims on appeal. On November 22, 2001, Almada and Alexander Zarka, at the time, ages thirteen and eleven, respectively, were playing a game called “doorbell ditch,” which involved ringing the plaintiffs doorbell and running away. After the children had rung the plaintiffs doorbell and had run away twice, the plaintiff decided to cross the street to a neighbor’s property and wait for the children to repeat the prank. After waiting several minutes, the plaintiff saw Almada approach his door on the side porch and ring the doorbell. The plaintiff then crossed the street toward his house and crossed his front lawn, telling Almada to wait there. After ringing the doorbell, Almada stepped off the side porch and started to run, moving toward Alexander Zarka, who was standing on the street. As the plaintiff was crossing his lawn and Almada was running away, the two collided, and both of them landed on the ground.

The plaintiff and Almada then stood up, and the plaintiff took hold of Almada’s wrist, an action which Almada initially resisted. The plaintiff led Almada up the side porch steps, still holding onto her wrist with her arm behind her at the small of her back. They entered the plaintiffs kitchen and the plaintiff continued to hold onto Almada’s wrist until her aunt, Joni Zarka, arrived. The plaintiff and Joni Zarka exchanged words about what had happened, and then Almada left with Joni Zarka and a man who had accompanied Joni Zarka to the house.

After they left, the plaintiff called the police because he was concerned that Joni Zarka and the man with her had accused him of assault. A police officer responded and, after listening to the plaintiffs description of the events, told him that either he could file a formal complaint or the officer could make her statement that the event had happened but that the parties had apparently resolved the matter. The plaintiff agreed to the latter approach.

The next day, Joni Zarka called the police, complaining that the plaintiff had assaulted and unlawfully restrained Almada. Officer Patrick Smith of the Farmington police department responded to the call and interviewed Joni Zarka, Alexander Zarka and Almada about the incident. Almada also provided an affidavit about the incident.

Smith next proceeded to the plaintiffs residence. On the way to the plaintiffs door, Smith observed a bracelet on the plaintiffs lawn. The bracelet matched the description of the bracelet that Almada said had broken and fallen off when she attempted to free herself from the plaintiffs grip. Smith marked the location of the evidence and took photographs of the area. Smith then interviewed the plaintiff and his wife. The plaintiff also provided Smith with an affidavit. Two days later, the plaintiff left a three page letter at the police department, further explaining his actions.

On the basis of all the statements, both oral and written, by the individuals involved, Smith determined that there was probable cause to apply for an arrest warrant for the plaintiff. On November 30, 2001, the plaintiff was charged with assault in the third degree in violation of General Statutes § 53a-61, unlawful restraint in the second degree in violation of General Statutes § 53a-96, and disorderly conduct in violation of General Statutes § 53a-182. The charges against the plaintiff were nolled by the state on February 24, 2003.

In September, 2003, the plaintiff filed an action against the defendants. By amended complaint filed May 19,2004, the plaintiff alleged malicious prosecution in counts one through three against Joni Zarka, Alexander Zarka and Almada, respectively. In count four, the plaintiff alleged that Almada assaulted him during the incident at his residence.

After the completion of extensive discovery, the Zarkas moved for summary judgment on counts one and two on June 16, 2006, and Almada moved for summary judgment on counts three and four on June 27, 2006. As to the malicious prosecution counts, the defendants moved for summary judgment on the ground that the plaintiff could not establish, inter alia, that the defendants had initiated or procured the institution of criminal proceedings against the plaintiff. Almada additionally sought summary judgment on the assault count on the ground that the plaintiff could not establish the requisite element of intent. On July 19, 2006, the plaintiff filed a memorandum of law with an exhibit in opposition to the motions. On November 30, 2006, the court granted the defendants’ motions for summary judgment. This appeal followed. Additional facts will be set forth as necessary.

We begin by setting forth the appropriate standard of review. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . The test is whether the party moving for summary judgment would be entitled to a directed verdict on the same facts. . . . Our review of the trial court’s decision to grant the defendant’s motion for summary judgment is plenary.” (Internal quotation marks omitted.) Reardon v. Windswept Farm, LLC, 280 Conn. 153, 158, 905 A.2d 1156 (2006).

“It is frequently stated in Connecticut’s case law that, pursuant to Practice Book §§ 17-45 and 17-46, a party opposing a summary judgment motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. . . . [T]ypically [demonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred. . . . Moreover, [t]o establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue. . . . Such assertions are insufficient regardless of whether they are contained in a complaint or a brief. . . . Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact.” (Internal quotation marks omitted.) McKinney v. Chapman, 103 Conn. App. 446, 451, 929 A.2d 355, cert. denied, 284 Conn. 928, 934 A.2d 243 (2007).

The plaintiff claims that the court improperly granted the motions for summary judgment because disputed issues of material fact exist. Specifically, with regard to the claim of malicious prosecution, the plaintiff argues that there was an issue of material fact because he asserted that it was the defendants’ false accusations that led to his arrest and subsequent criminal prosecution, and not, as the defendants argued, the plaintiffs statements. In their memorandum of law in support of their motion for summary judgment, the defendants asserted that the plaintiff was not able to establish the first element of malicious prosecution regarding the initiation or procurement of the institution of criminal proceedings against him. We agree with the defendants.

Malicious prosecution is a tort arising out of a criminal complaint that is “intended to protect an individual’s interest in freedom from unjustifiable and unreasonable litigation . . . .” (Internal quotation marks omitted.) Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 99, 912 A.2d 1019 (2007). “An action for malicious prosecution against a private person requires a plaintiff to prove that: (1) the defendant initiated or procured the institution of criminal proceedings against the plaintiff; (2) the criminal proceedings have terminated in favor of the plaintiff; (3) the defendant acted without probable cause; and (4) the defendant acted with malice, primarily for a purpose other than that of bringing an offender to justice.” McHale v. W.B.S. Corp., 187 Conn. 444, 447, 446 A.2d 815 (1982).

“The policy of encouraging private citizens to assist in law enforcement is vindicated, in the law of malicious prosecution, by providing a limited immunity in the form of the first element that the plaintiff must prove to maintain his cause of action. A private person can be said to have initiated a criminal proceeding if he has insisted that the plaintiff should be prosecuted, that is, if he has brought pressure of any kind to bear upon the public officer’s decision to commence the prosecution. . . . But a private person has not initiated a criminal proceeding if he has undertaken no more than to provide potentially incriminating information to a public officer. In such a case, if the defendant has made a full and truthful disclosure and has left the decision to prosecute entirely in the hands of the public officer, he cannot be held liable for malicious prosecution.” (Citations omitted.) Id., 448. “A person is deemed to have initiated a proceeding if his direction or request, or pressure of any kind by him, was the determining factor in the officer’s decision to commence the prosecution.” Zenik v. O’Brien, 137 Conn. 592, 596, 79 A.2d 769 (1951).

The defendants supported their motions for summary judgment by providing statements given to the police by the plaintiff and the defendants. In addition, the defendants offered excerpts from Smith’s deposition and from the deposition of Christopher A. Pelosi, an assistant state’s attorney. In his deposition, Smith testified that when responding to a complaint, he always asks a complainant if he or she would like the matter investigated and if the complainant would be willing to make a statement. Smith testified that, in response to this question, Joni Zarka stated that she would be willing to give a statement but that she did not make a specific request for any action. Smith also testified that his decision to seek the charges against the plaintiff was based largely on the plaintiffs statements regarding the incident. Pelosi testified at his deposition that some of the plaintiffs statements raised the issue of criminal conduct and that he would have treated those statements as admissions to at least some of the charges had the underlying charges gone to trial. Pelosi also testified that despite entering a nolle prosequi on the charges, he had a good faith belief that there was probable cause to prosecute.

In order to prevail on a claim of malicious prosecution, the plaintiff must prove, inter alia, that the defendants initiated or procured the institution of the criminal proceedings against the plaintiff. To survive this motion for summary judgment, the plaintiff would have had to demonstrate the existence of a genuine issue of material fact with regard to this element. The plaintiff, in his brief in opposition to the motion for summary judgment, however, did not argue that the defendants had insisted that he be prosecuted or that they had brought pressure of any kind to bear on the public officers involved. The plaintiff also did not argue that the defendants did more than provide potentially incriminating information to a public officer. The plaintiff simply asserted that the information in the arrest warrant application was based on “materially false statements” made by the defendants, and thus, they had not made full and truthful disclosures. The only support for his opposition to the motion for summary judgment that the plaintiff offered was the arrest warrant application.

“It is not enough . . . for the opposing party merely to assert the existence of such a disputed issue. . . . The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence. ... If the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof. . . . When a party files a motion for summary judgment and there [are] no contradictory affidavits, the court properly [decides] the motion by looking only to the sufficiency of the [movant’s] affidavits and other proof.” (Citations omitted; internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn. App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003).

As movants for summary judgment, the defendants produced evidence to show that they did not initiate or procure the institution of the criminal proceedings. The plaintiff did not contest this evidence, nor did he produce any evidence to the contrary. The one document that the plaintiff supplied in support of his opposition to the motion for summary judgment, the arrest warrant application, did not contain any facts regarding whether the defendants had applied any pressure on the public officials to prosecute the plaintiff or whether anything they had done was the determining factor in the officials’ decision to commence prosecution. See Zenik v. O’Brien, supra, 137 Conn. 596. The plaintiff merely asserted in his brief that the defendants had made false statements but offered no admissible evidence in support of that assertion and provided no counteraffidavits as required. See Mozeleski v. Thomas, supra, 76 Conn. App. 290. Thus, the plaintiff has not met his burden as the party opposing summary judgment, and we conclude that the court properly rendered summary judgment.

The plaintiff also claims that summary judgment should not have been rendered with regard to count four of his complaint, which alleged assault by Almada. The plaintiff, however, focused his argument on why summary judgment was improper on the malicious prosecution counts and provides only cursory mention of the assault count. This scant treatment without proper analysis constitutes inadequate briefing on this claim, and we therefore decline to afford it review.

The judgment is affirmed and the cross appeals are dismissed.

In this opinion the other judges concurred.

       In her motion for summary judgment, Almada adopted the Zarlcas’ memorandum of law regarding the malicious prosecution counts.

       Though the terms “procure” and “initiate” are not synonymous, our case law does not elucidate the legal distinction. The Restatement (Second) of Torts distinguishes between the two terms and states: “A person who does not himself initiate criminal proceedings may procure their institution in one of two ways: (1) by inducing a third person, either a private person or a public prosecutor, to initiate them, or (2) by prevailing upon a public official to institute them by filing an information. . . . The giving of the information or the making of the accusation, however, does not constitute a procurement of the proceedings that the third person initiates if it is left to the uncontrolled choice of the third person to bring the proceedings or not as he may see fit.” 3 Restatement (Second), Torts § 653, comment (d) (1977). We note, however, that the plaintiff does not raise as an issue any distinction between these terms.

       On appeal, the plaintiff referenced in his opposition brief an affidavit in which he purportedly attested that he “was bom with two club feet and is physically incapable of performing the actions attributed to him by the defendants.” This affidavit, however, is not in the file and does not appear to have been before the court on the motion for summary judgment. Almada also remarked on its absence in her reply to the plaintiffs opposition brief. Moreover, this assertion is in contradiction to some of the statements made by the plaintiff himself to the police.
      In his sworn written statement to the police, the plaintiff wrote: “As this kid was walking down my steps, I began to run to intercept the kid. As I got closer, the smaller child shouted to the one on my side porch. The taller child began to run faster (apparently) as I arrived at the walkway about 3 feet from my porch. The child who rang my doorbell and I collided head-on and both fell to the ground. (Her head hit my jaw, which is swollen today.) I stood up first and when she (at this point, I realized it was a girl.) stood up, I held her wrist. I asked her if she thought this was fun. She squirmed and I put her wrist behind the small of her back. From this point on, she did not squirm or resist me, so I simply held her wrist (somewhat loosely) behind her back.”

       The defendants filed cross appeals, arguing that the court improperly concluded that the plaintiffs criminal charges terminated in his favor when the state nolled the charges against him. Because the defendants were the prevailing' parties, and therefore nonaggrieved parties, their cross appeals must be dismissed. We treat their claim, however, as an alternate ground for affirmance. See Bower v. D’Onfro, 45 Conn. App. 543, 547 n.5, 696 A.2d 1285 (1997). Because we affirm the judgment on other grounds, however, we do not reach this claim.

       “[W]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” (Citation omitted; internal quotation marks omitted.) Shore v. Haverson Architecture & Design, P.C., 92 Conn. App. 469, 479, 886 A.2d 837 (2005), cert. denied, 277 Conn. 907, 894 A.2d 988 (2006).
      In its memorandum of decision, the court noted that the plaintiff did not respond to Almada’s motion for summary judgment as to the count of battery, but because Almada, as the moving party, had the burden of showing that there was no genuine issue of material fact, the court properly addressed the adequacy of Almada’s motion for summary judgment on this count.


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF CONNECTICUT v. ANGEL NIEVES
    (AC 28463)
    Flynn, C. X, and DiPentima and Pellegrino, Js.

      Argued October 22, 2007
    officially released February 26, 2008

      Alice Osedach, assistant public defender, for the appellant (defendant).

      Sarah Hanna, deputy assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, James E. Thomas, former state’s attorney, and Dennis J. O’Connor, senior assistant state’s attorney, for the appellee (state).
   Opinion

DiPENTIMA, J.

The defendant, Angel Nieves, appeals from the judgment of conviction of murder in violation of General Statutes § 53a-54a (a), carrying a pistol without a permit in violation of General Statutes § 29-35 and criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (l). The charges of murder and carrying a pistol were tried to the jury. The charge of criminal possession of a firearm was tried to the court. On appeal, the defendant claims that the trial court improperly (1) denied his motion to suppress certain pretrial and in-court identifications, and (2) instructed the jury regarding the thoroughness of the police investigation. We affirm the judgment of the trial court.

The following facts and procedural history inform our disposition of the defendant’s claims. On April 18, 2002, at approximately 8 p.m., the victim, Raphael Mendez, was shot four times and killed at the Sands housing complex in Hartford. The defendant was arrested in connection with Mendez’ death on March 27, 2003, and charged with murder in violation of § 53a-54a (a), carrying a pistol without a permit in violation of § 29-35 and criminal possession of a firearm in violation of § 53a-217 (a) (1). The defendant elected a jury trial on the charges of murder and carrying a pistol without a permit, and a trial to the court on the charge of criminal possession of a firearm. The jury returned a guilty verdict on both of the charges tried before it, and the court found the defendant guilty of the third charge. The court sentenced the defendant to life (sixty years) imprisonment, with a mandatory minimum of twenty-five years, for the murder conviction. The court further sentenced the defendant to four years imprisonment for the conviction of each of the firearms violations, with a mandatory minimum of one year on the count of carrying a pistol without a permit and a mandatory minimum of two years on the count of criminal possession of a firearm. The three sentences were to be served consecutively for a total effective sentence of sixty-eight years, with a mandatory minimum of twenty-eight years. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly denied his motion to suppress the identifications made by three witnesses who identified him as the shooter. Specifically, the defendant claims that each of the identifications was the product of an unnecessarily suggestive identification procedure in violation of his right to due process and a fair trial under the fifth and fourteenth amendments to the United States constitution. We reject the defendant’s claim.

On September 7, 2004, the defendant filed a motion to suppress the identifications made by three witnesses to the shooting, Sean Butler, Edith Abuyounis and Mayra Rios. Butler and Rios had identified the defendant from photographic arrays prepared by the Hartford police. Abuyounis had identified the defendant after observing him appear in court as the person charged with shooting the victim. The court, after hearing five days of testimony on the defendant’s motion in May, 2005, orally denied the defendant’s motion. The court thereafter, on October 26, 2005, issued a written memorandum of decision on the motion.

Before we address each of the challenged identifications in turn, we set forth the applicable standard of review as stated by our Supreme Court. “[T]he required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances. ... To prevail on his claim, the defendant has the burden of showing that the trial court’s determinations of suggestiveness and reliability both were incorrect. . . .

“Furthermore, [w]e will reverse the trial court’s ruling [on evidence] only where there is an abuse of discretion or where an injustice has occurred . . . and we will indulge in every reasonable presumption in favor of the trial court’s ruling. . . . Because the inquiry into whether evidence of pretrial identification should be suppressed contemplates a series of factbound determinations, which a trial court is far better equipped than this court to make, we will not disturb the findings of the trial court as to subordinate facts unless the record reveals clear and manifest error.” (Internal quotation marks omitted.) State v. Randolph, 284 Conn. 328, 384-85, 933 A.2d 1158 (2007).

“Because, [generally, [t]he exclusion of evidence from the jury is ... a drastic sanction, one that is limited to identification testimony which is manifestly suspect . . . [a]n identification procedure is unnecessarily suggestive only if it gives rise to a very substantial likelihood of irreparable misidentification.” (Internal quotation marks omitted.) Id., 385. “Absent a very substantial likelihood of irreparable misidentification, [w]e are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.” (Internal quotation marks omitted.) State v. Cook, 262 Conn. 825, 837, 817 A.2d 670 (2003). “To determine whether a photographic array is unnecessarily suggestive, a reviewing court considers various factors, including, but not limited to: (1) the degree of likeness shared by the individuals pictured ... (2) the number of photographs included in the array ... (3) whether the suspect’s photograph prominently was displayed or otherwise was highlighted in an impermissible manner ... (4) whether the eyewitness had been told that the array includes a photograph of a known suspect ... (5) whether the eyewitness had been presented with multiple arrays in which the photograph of one suspect recurred repeatedly . . . and (6) whether a second eyewitness was present during the presentation of the array.” (Citations omitted.) State v. Randolph, supra, 284 Conn. 385-86.

“[Reliability is the linchpin in determining the admissibility of identification testimony .... Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977).” (Internal quotation marks omitted.) State v. Cook, supra, 262 Conn. 836-37. “[W]e examine the legal question of reliability with exceptionally close scrutiny and defer less than we normally do to the related fact finding of the trial court.” (Internal quotation marks omitted.) State v. Garner, 270 Conn. 458, 469, 853 A.2d 478 (2004). “[B]ecause the issue of the reliability of an identification involves the constitutional rights of an accused . . . we are obliged to examine the record scrupulously to determine whether the facts found are adequately supported by the evidence and whether the court’s ultimate inference of reliability was reasonable.” (Internal quotation marks omitted.) State v. Randolph, supra, 284 Conn. 384. “To determine whether an identification that resulted from an unnecessarily suggestive procedure is reliable, the corruptive effect of the suggestive procedure is weighed against certain factors, such as the opportunity of the [witness] to view the criminal at the time of the crime, the [witness’] degree of attention, the accuracy of [the witness’] prior description of the criminal, the level of certainty demonstrated at the [identification] and the time between the crime and the [identification].” (Internal quotation marks omitted.) State v. Cook, supra, 837; see also Neil v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).

We thoroughly have reviewed the record in this case. We conclude that the court’s findings of the subordinate facts are supported adequately by the evidence presented at the suppression hearing and the reasonable inferences drawn therefrom. Accordingly, we will not disturb the court’s findings but instead focus our discussion on the court’s ultimate conclusions on the critical issues of suggestiveness and reliability.

A

The defendant argues that the identification procedure used with Butler was unnecessarily suggestive because the detectives never warned Butler that the suspect may not have been included in the photographic array through which Butler identified the defendant; the photographic array identification procedure was not a double-blind, sequential procedure; the defendant was the only one of eight suspects wearing a turtleneck sweater in the photographic array; and the defendant’s photograph was placed near the center of the photographic array rather than near the periphery. The defendant further argues that the identification procedure was unreliable because Butler did not know the defendant and was not familiar with him; Butler’s observation of the shooter occurred at dusk from a distance of fifteen feet; prior to making his identification, Butler could not give a detailed description of the shooter to the police; Butler observed the shooter for a very short period of time and his attention at the time was not optimal; and Butler’s description of the sequence of events that occurred at the time he observed the shooter conflicted with others’ descriptions of the same events. We disagree with the defendant’s argument that the procedure was unnecessarily suggestive.

With respect to Butler’s identification, the court found the following facts. On April 18, 2002, Butler was working as a security guard for the Sands housing complex. He did not witness the shooting, but he did observe someone flee from the scene and enter a black Volvo automobile. He did not know the person who entered the Volvo and did not observe a gun in that person’s hand.

On April 22,2002, at the request of the Hartford police, Butler viewed a photographic array prepared by Detective William Siemionko. The array was comprised of photographs of eight individuals who all strongly resembled the defendant. In the array that Butler viewed, the defendant’s photograph was located in a different position from where Siemionko had placed it in arrays that he had shown to other witnesses. Siemionko told Butler to look at the photographic array and to determine whether he recognized any of the individuals as the person he saw fleeing the Sands housing complex on the night of the shooting. The detective told Butler to take his time and, if he recognized one of the individuals in the photographic array, to circle that person’s picture and then sign and date the photographic array. Siemionko did not suggest to Butler that the police had a suspect. He also made no suggestion as to which photograph Butler should select or whether he should select any photograph at all. Of the eight individuals depicted in the array, Butler recognized the defendant as the person he had seen fleeing in the Volvo on the night of the shooting. He circled the photograph of the defendant and signed and dated the array. Butler testified that he was 90 percent certain that the photograph he had circled depicted the person he had seen fleeing from the scene of the shooting. He again identified the defendant in court at the suppression hearing.

On the basis of its factual findings, the court properly concluded that the photographic array from which Butler identified the defendant did not create a very substantial likelihood of irreparable misidentification. The photographic array viewed by Butler belies the defendant’s first argument that the detectives never warned Butler that the suspect’s photograph may not be included in the array. The array contains a conspicuous notice that cautions the viewer that “[y]ou should not conclude or guess that the photographs contain the person who committed the offense under investigation.” Moreover, the failure to provide such a warning to the witness does not render the identification unnecessarily suggestive. See State v. Williams, 203 Conn. 159, 177, 523 A.2d 1284 (1987) (“[w]hen ... the victim would have inferred [without police comment] that the occasion for [her] being requested to identify someone is that the police have a particular person in mind who has been included among those to be viewed, police statements to that effect do not render the identification procedure unnecessarily suggestive” [internal quotation marks omitted]). Accordingly, we reject the defendant’s first argument.

The defendant’s other arguments are equally unavailing. Due process does not require the suppression of a photographic identification that is not the product of a double-blind, sequential procedure. State v. Nunez, 93 Conn. App. 818, 828-32, 890 A.2d 636, cert. denied, 278 Conn. 914, 899 A.2d 621, cert. denied, 549 U.S. 906, 127 S. Ct. 236, 166 L. Ed. 2d 186 (2006). Further, the fact that the defendant was the only person in the array wearing a turtleneck sweater does not mandate a conclusion that Butler’s attention was improperly focused on the defendant. See United States v. Brennick, 405 F.3d 96, 100 (1st Cir. 2005) (“[a]s none of the witnesses described [the defendant] as wearing a zippered mock turtleneck and the other men pictured in the array are not uniformly dressed in a manner that makes [the defendant] stand out, it is irrelevant that he is the only one pictured wearing one”); United States v. Fletcher, 121 F.3d 187, 194-95 (5th Cir.), cert. denied, 522 U.S. 1063, 118 S. Ct. 725, 139 L. Ed. 2d 664 (1998). “The question ... is not whether the defendant’s photograph could be distinguished from the other photographs, but whether the distinction made it unnecessarily suggestive.” State v. Nunez, supra, 828; id., 827 (no constitutional mandate gives defendant right to photographic array of look-alikes); see also United States v. Thai, 29 F.3d 785, 808 (2d Cir.) (principal question is whether photograph of accused, matching descriptions given by witness, so stood out from all other photographs as to suggest to identifying witness that accused more likely to be culprit), cert. denied sub nom. Lan Ngoc Tran v. United States, 513 U.S. 977, 115 S. Ct. 456, 130 L. Ed. 2d 364, cert. denied sub nom. Minh Do v. United States, 513 U.S. 993, 115 S. Ct. 496, 130 L. Ed. 2d 406 (1994). Likewise, the fact that the defendant’s photograph was in the center of the array does little to increase the likelihood of irreparable misidentification. See United States v. Carter, 410 F.3d 942, 949 (7th Cir. 2005); United States v. Brennick, supra, 99-100; United States v. Fletcher, supra, 194-95. The court did not abuse its discretion when it concluded that the identification procedure used with Butler was not unnecessarily suggestive.

In order to prevail on his claim that Butler’s identification was inadmissible at trial, the defendant must demonstrate both that the identification procedure was unnecessarily suggestive and that, under the totality of the circumstances, the resulting identification was not reliable. “Only if the procedures used to identify the accused are unnecessarily suggestive are we required to analyze the factors that determine the reliability of an identification for due process purposes.” State v. Miller, 202 Conn. 463, 470, 522 A.2d 249 (1987). Because we conclude that the identification procedure used with Butler was not unnecessarily suggestive, we do not reach the question of the reliability of the resulting identification. See State v. Holliman, 214 Conn. 38, 48-49, 570 A.2d 680 (1990). The court properly denied the defendant’s motion to suppress with respect to Butler’s pretrial identification.

B

The defendant next argues that the identification procedure used with Abuyounis was unnecessarily suggestive because she made the identification after others told her that “Cholo” shot the victim and after she had observed the defendant appear in court as the person charged with shooting the victim. The defendant further argues that the identification was unreliable because Abuyounis lacked familiarity with the defendant; her identification was not on the basis of her independent memory of the night of the shooting; she had little opportunity to observe the shooter as he fled the scene of the crime; she could not give a detailed description of the shooter; and she made the identification more than one year after the shooting. We reject the defendant’s arguments that the identification was unreliable.

With respect to Abuyounis’ identification, the court found the following facts. Abuyounis lived at the Sands housing complex and was home on the evening of the shooting. She saw the victim, her nephew, approximately one-half hour before the shooting as he passed by her apartment and waved. One-half hour later, she heard a “popping” sound and heard screaming and other commotion in the courtyard of the housing complex. Abuyounis ran outside to see what was happening and saw her nephew lying on the ground. She also saw another man, whom she recognized, running with a gun in his hand down the hill toward the rear of the housing complex. When other people in the courtyard started yelling, “Cholo,” she recalled that the man with the gun was the person, known by the name “Cholo,” whom she had seen “hanging around” with her nephew. She also had seen “Cholo” at her sister’s house prior to the shooting.

On her own initiative, Abuyounis attended court a number of times in connection with this case in support of her sister, the victim’s mother. On some of those occasions, she observed the defendant in court and knew he had been charged in connection with her nephew’s death. Thereafter, on May 15, 2003, Abuyounis spoke with Siemionko. A few weeks later, she gave a voluntary statement to the police, in which she stated what she had observed on the night of the shooting and identified “Cholo” as the person whom she had seen running from the scene with a gun in his hand. At the suppression hearing, Abuyounis again identified the defendant, with 100 percent certainty, as the man whom she knew as “Cholo” and whom she had witnessed running through the courtyard.

“[I]t is well established that conduct that may fairly be characterized as state action is a necessary predicate to a challenge under the due process clause .... If an identification of a defendant is done spontaneously and is not arranged by the police, the identification is not tainted by state action and due process rights are not violated.” (Citation omitted; internal quotation marks omitted.) State v. Jones, 59 Conn. App. 762, 766, 757 A.2d 689 (2000), cert. denied, 255 Conn. 924, 767 A.2d 99 (2001). “ [E]ven if the defendant’s claim has no constitutional underpinning, [however,] the criteria established for determining the admissibility of identifications in the due process context are appropriate guidelines by which to determine the admissibility of identifications that result from procedures conducted by civilians.” State v. Holliman, supra, 214 Conn. 46.

On the basis of its factual findings, the court properly concluded that Abuyounis’ identification was not prompted, arranged or enhanced by police action and that no police identification procedure was involved in her identifying the defendant as the person who shot the victim. Further, the court reasonably concluded that even if it assumed that Abuyounis’ identification was the product of unnecessary suggestion, it nonetheless was reliable because any suggestiveness was outweighed by her physical proximity to the shooter at the time she observed him fleeing he scene, the level of detail in her description of the shooter, the level of certainty she exhibited in her identification of the defendant and her familiarity with the defendant prior to the shooting. The court’s conclusions are legally and logically correct and supported by the facts set forth in its memorandum of decision. The court properly denied the defendant’s motion to suppress with respect to Abuyounis’ in-court identification.

C

The defendant next argues that the identification made by Rios was unnecessarily suggestive because, similar to the procedure used with Butler, the photographic array procedure through which she identified the defendant was not a double-blind procedure and because the defendant’s photograph was placed in the center of the array as opposed to near the periphery. The defendant further argues that Rios’ identification was unreliable because the first time she identified him as the shooter, she provided the police with a false name for herself instead of disclosing her true identity. We reject the defendant’s argument that the procedure was unnecessarily suggestive for the same reasons that we reject the defendant’s arguments with respect to the identification procedure used with Butler. See part I A. Accordingly, we conclude that the court properly denied the defendant’s motion to suppress with respect to Rios’ pretrial identification.

II

The defendant next claims that the court improperly instructed the jury regarding the competence of the police and the thoroughness of their investigation. Specifically, the defendant claims that the court’s instruction effectively removed from the jury’s consideration the adequacy of the police investigation, thereby interfering with his right to present a defense, undermining the presumption of innocence and diluting the state’s burden of proof, all in violation of his constitutional rights under the fifth, sixth and fourteenth amendments to the United States constitution. We disagree.

Before we reach the merits of the defendant’s claim, we first address the state’s argument that the defendant’s claim was not preserved properly at trial. Specifically, the state argues that the defendant took exception to the instruction at trial on the ground that the instruction was not relevant under the facts of this case but now claims on appeal that the instruction violated his rights under the United States constitution.

Practice Book § 42-16 provides: “An appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of exception. The exception shall be taken out of the hearing of the jury.” The purpose of this rule “is to alert the court to any claims of error while there is still an opportunity for correction ... to avoid trial by ambush [of the presiding judge and the opposing party].” (Citation omitted; internal quotation marks omitted.) State v. Paulino, 223 Conn. 461, 476, 613 A.2d 720 (1992).

The defendant concedes in his reply brief that he did not raise his constitutional claim distinctly before the trial court. The defendant, therefore, failed to preserve his constitutional claim at trial. Accordingly, in order to prevail on his claim that the instruction violated his constitutional rights, the defendant must satisfy the four conditions set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

“[A] defendant 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 defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Emphasis in original.) Id. We reject the defendant’s claim because no constitutional violation clearly exists, and the defendant was not deprived of a fair trial.

In its charge to the jury, the court instructed the jurors, inter alia: “During the course of the case, you’ve heard some discussion or questioning as to whether the police conducted a thorough investigation and the competency of the police in this case. The issue before you in this case is not the thoroughness of the investigation or the competence of the police. The issue you have to determine is whether the state, in light of the evidence before you, has proven beyond a reasonable doubt [that] the defendant is guilty of the crimes charged.”

“Under prong three of Golding, a challenged jury instruction constitutes a clear constitutional violation that clearly deprives a defendant of a fair trial if it is found reasonably possible that the jury was misled by the court’s instruction. ... To determine whether it is reasonably possible that the jury was misled by the court’s instruction, [t]he test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. . . . The challenged instruction must be analyzed for its probable effect on the jury in the context of the entire charge and the entire trial, rather than as individual sentences or phrases viewed in isolation. ... In evaluating a jury instruction under prong three of Golding, [w]e will not sever one part of the instruction and analyze it separately from the whole.” (Citations omitted; internal quotation marks omitted.) State v. Tate, 59 Conn. App. 282, 286-87, 755 A.2d 984, cert. denied, 254 Conn. 935, 761 A.2d 757 (2000).

In Tate, the trial court instructed the jury as follows: “[t]he issue before you is not the thoroughness of the investigation of the responding police officer; the issue you have to determine is whether the state, in light of all the evidence before you, has proved the defendant’s guilt beyond a reasonable doubt as I have recited that to you. That is the sole issue.” (Internal quotation marks omitted.) Id., 284. On appeal, we concluded that this jury instruction was not improper because repeatedly throughout the lengthy and detailed jury instructions, the court clearly and definitively instructed the jury that the burden rests solely on the state to prove the accused guilty of the charges and that the defendant is presumed innocent unless and until the state proves the defendant’s guilt beyond a reasonable doubt. Id., 287; see also State v. Williams, 169 Conn. 322, 335-36, 335 n.3, 363 A.2d 72 (1975) (concluding on basis of similar instructions that when read as whole, instructions adequately instructed and gave jury clear understanding of issues involved and proper guidance in determining issues).

The defendant contends that the jury instruction now at issue misled the jury into believing that the state’s burden of proof was less than beyond a reasonable doubt and that the instruction suggested to the jury that he had an evidentiary burden to prove his innocence, or at least to raise a reasonable doubt as to his guilt. A thorough review of the transcripts and the jury instruction in its entirety, however, reveals that there is no reasonable possibility that the jury was misled by the challenged jury instruction. Repeatedly, throughout the lengthy and detailed jury instructions, the court, in clear and legally correct terms, definitively instructed the jury that the burden rests solely on the state to prove the accused guilty of the charges and that the defendant is presumed innocent unless and until the state proves the defendant’s guilt beyond a reasonable doubt. Moreover, the court instructed the jury that reasonable doubt “has its foundation in the evidence or lack of evidence.” (Emphasis added.) The defendant’s attempts to distinguish this case from State v. Tate, supra, 59 Conn. App. 282, are unpersuasive. As we observed in Tate, the court’s numerous and accurate instructions about the state’s burden of proof certainly “eliminated any reasonable likelihood of juror misunderstanding as to the state’s burden and the proof necessary for a conviction.” (Internal quotation marks omitted.) Id., 289.

Because a reading of the entire jury instructions reveals that there is no reasonable possibility that the jury was misled, the defendant has failed to establish that a constitutional violation clearly exists and clearly deprived him of a fair trial pursuant to Golding’s third prong. Accordingly, we reject the defendant’s unpreserved claim that the court’s instruction to the jury regarding the police investigation was improper.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .”

       General Statutes § 29-35 provides in relevant part: “(a) No person shall carry any pistol or revolver upon his or her person, except when such person is within the dwelling house or place of business of such person, without a permit to carry the same issued as provided in section 29-28. . . .”

       General Statutes § 53a-217 (a) provides in relevant part: “A person is guilty of criminal possession of a firearm . . . when such person possesses a firearm or electronic defense weapon and (1) has been convicted of a felony . . . .”

       The defendant’s motion to suppress challenged “any pretrial or in-court identification of the defendant,” including the identification made by a fourth witness, Edward Bones. The defendant, however, does not address the fourth identification in his brief to this court. Accordingly, we decline to review the defendant’s claim with respect to the fourth witness. See State v. Blango, 103 Conn. App. 100, 116 n.11, 927 A.2d 964 (“[W]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failing to brief the issue properly.” [Internal quotation marks omitted.]), cert. denied, 284 Conn. 919, 933 A.2d 721 (2007).

       The defendant further claims that the identifications violated his rights under article first, § 8, of the constitution of Connecticut. The defendant, however, has failed to provide an analysis of his claim under the constitution of Connecticut independent of his claim under the analogous provisions of the United States constitution. “[W]e will not entertain a state constitutional claim unless the defendant has provided an independent analysis under the particular provisions of the state constitution at issue. . . . Without a separately briefed and analyzed state constitutional claim, we deem abandoned the defendant’s claim . . . .” (Internal quotation marks omitted.) State v. Fauntleroy, 101 Conn. App. 144, 159 n.5, 921 A.2d 622 (2007). Accordingly, we confine our analysis to the defendant’s federal constitutional claim. See State v. Eady, 249 Conn. 431, 435 n.6, 733 A.2d 112, cert. denied, 528 U.S. 1030, 120 S. Ct. 551, 145 L. Ed. 2d 428 (1999).

       “A double-blind photographic identification procedure is one in which the officer conducting [the procedure] has not been involved in the investigation and does not know who the target is. ... A sequential photographic identification procedure involve [s] showing the witness the suspect and other fillers on the identification procedure one at a time, rather than the traditional practice of simultaneous presentation.” (Citation omitted; internal quotation marks omitted.) State v. Nunez, 93 Conn. App. 818, 825 n.3, 890 A.2d 636, cert. denied, 278 Conn. 914, 899 A.2d 621, cert. denied, 549 U.S. 906, 127 S. Ct. 236, 166 L. Ed. 2d 186 (2006).

         The notice, in its entirety, states: “NOTICE: You have been asked to look at this group of photographs. The fact that they are shown to you should not influence your judgment. You should not conclude or guess that the photographs contain the person who committed the offense under investigation. You are not obligated to identify anyone. It is just as important to free innocent persons from suspicion as to identify guilty parties. Please do not discuss this case with other witnesses nor indicate in any way that you have, or have not identified someone.”

       The defendant further claims that the instructions violated his rights under article first, § 8, of the constitution of Connecticut. The defendant again has failed to provide an analysis of his claim under the constitution of Connecticut independent of his claim under the analogous provisions of the United States constitution. See footnote 5. Accordingly, we discuss only the defendant’s federal constitutional claim. Id.

       Our review of the record reveals the following. Prior to the close of evidence, the court held a charging conference on May 25 and 26, 2007. During that conference, the state requested an instruction on the police investigation, which was granted. The record does not reveal whether, off the record, the defendant objected to the state’s request, but on the record, the court asked whether counsel wanted “to add or subtract from [its] summary of the charge conference.” The defendant’s counsel responded: “No, Your Honor. I had several requests, and I think that they were incorporated into your charge, perhaps not word for word, but the substance of it, so I’m satisfied.” Thereafter, prior to the state’s rebuttal to her closing argument, the defendant’s counsel “reiterated” her objection to the instruction on the police investigation, stating: “I really don’t think that that came into the case at all. It certainly wasn’t part of [the defendant’s] argument, and I suspect it won’t be part of [the state’s].” Finally, after the court had charged the jury, the defendant’s counsel stated: “Your Honor, just as previously noted, we object to the portion of the charge on page fifteen regarding police investigations ... for the reasons stated.” Even if the defendant had not conceded the point, on the basis of the record before us, we conclude that the defendant did not raise before the trial court any constitutional ground for his objection to the police investigation instruction.

       The defendant asserted Golding review in his initial brief as an alternate basis for review of his constitutional claim.


author: BISHOP, J.

text:
    JOHN BARBER III ET AL. v. SKIP BARBER RACING SCHOOL, LLC
    (AC 27684)
    Bishop, McLachlan and Hennessy, Js.

      Argued October 16, 2007
    officially released February 26, 2008

      James K. Robertson, Jr., with whom, on the brief, was Thomas J. Sansone, for the appellant-appellee (plaintiff Lime Rock Associates, LLC).

      Michael P. Shea, with whom was Steven M. Greenspan, for the appellee-appellant (defendant).
   Opinion

BISHOP, J.

The following general facts are set forth in the court’s memorandum of decision. Barber is a former professional race car driver who established an auto racing school (old school) at Lime Rock Park (racing park) in Lakeville in 1975. The racing park property contains a 1.53 mile paved auto racing track and its supporting areas and buildings. The old school and the racing park had an oral agreement as to which areas of the racing park property the old school could use for its operations, the school’s schedule of use and compensation for this usage. After commencing the racing school operations at the track, the old school added a defensive driving component and a racing series for former students, and it expanded its program to tracks throughout the United States and Canada.

In 1983, the associates purchased the racing park. By the early 1990s, Barber was the majority stockholder of the associates, thereby simultaneously controlling both the race track and the old school. In the spring of 1999, Barber sold 80 percent of his stock in the old school to the investor, Sports Capital, LLC, while remaining the school’s chief executive officer. The stock purchase agreement between Barber and Sports Capital, LLC, required that the associates and the old school negotiate a written agreement for the old school’s continued use of the racing park. Sports Capital, LLC, insisted on the agreement to ensure that its investment, the old school, would have continued, reliable access to the track and would be protected from excessive rate increases by the associates. The result was a fifteen year usage agreement signed by Barber in his capacity as the chief executive officer of both the associates and the old school. The usage agreement provided guaranteed price protections, a 50 percent discount on use of the track and upper area, and scheduling and use assurances for the track facilities.

The old school suffered severe financial distress during its ownership by Sports Capital, LLC. In December, 2001, the old school’s assets were purchased by the new school, pursuant to a written asset purchase agreement. During the transaction, the language and terms of the usage agreement were not altered or amended. According to § 6.01 (Z) of the asset purchase agreement, the rights and obligations of the old school under the fifteen year usage agreement were assigned to the new school.

The parties’ relationship began to disintegrate over conflicting interpretations of the usage agreement, disagreements over compensation and mutual distrust. The plaintiffs filed a complaint against the new school on March 27, 2003, alleging that the new school owed the plaintiffs money for the new school’s use of the track and for their obligations under the asset purchase agreement. The new school filed counterclaims on June 18,2003, alleging that Barber had breached his fiduciary duty and seeking clarification by the court of the terms of the usage agreement.

After a court trial that lasted nine days, incorporation into the record of a two day evidentiary hearing on competing motions for a prejudgment remedy, a site visit by the court in the company of the parties’ attorneys and extensive posttrial briefs, the court issued a memorandum of decision. Consequently, both parties filed motions to reargue. In response, the court issued a memorandum of decision rectifying mistakes in the court’s initial calculation of damages. This appeal and cross appeal followed. Additional facts will be set forth as necessary.

I

APPEAL BY THE ASSOCIATES

A

First, the associates claim that the court improperly rendered judgment declaring that the second autocross course is controlled by the preexisting usage agreement that was negotiated between the associates and the old school. Specifically, the associates claim that the court improperly concluded that the usage agreement controls the subsequently constructed second autocross course on the basis that the second autocross course is a related facility to the upper area, and, therefore, the associates cannot charge additional compensation for its use.

The following supplementary facts are relevant to resolution of the associates’ claim. In March, 1999, when the usage agreement was signed, the track property contained only one autocross course. Section 2.1 of the usage agreement provides that the old school “shall have the right to use the Track, the Upper Area and their associated garages, parking areas and related facilities . . . .” The upper area is shown on a map included as exhibit D of the usage agreement. The upper area consists of the Skip Barber racing pad and a roughly rectangular area that, though the map is not drawn to scale, incontrovertibly includes the entire original autocross course.

On July 15, 1999, the board of directors (board) of the old school, at the request of Barber, the school’s president and chief executive officer, approved a capital expenditure of $242,000 for the construction of a second autocross course as a leasehold improvement. Barber, who was also the controlling shareholder of the associates at the time, told the board that by billing the second autocross course as a one year leasehold improvement, the old school would save approximately $143,000 over the alternative of reimbursing the associates’ construction costs through a five year lease. The minutes further indicate that Barber had experience arranging similar leasehold improvements at other tracks and that Barber informed the board that a second autocross course was useful only to the old school and actually detracted from the associates’ property.

The second autocross course was constructed in late 1999, and two paved roads linked it to the first autocross, allowing expansion of the two courses into one larger track. The old school used the second autocross course in its operations, without charge, until its assets were sold to the new school in December, 2001. The new school continued to use the second autocross course, without charge, through the 2002 racing season. In a memo dated March 14, 2003, however, the associates explained that the new school was not using the second autocross course for free but was paying for it through charges of $1250 per day of use applied against a credit of $242,000 that was earned when the old school funded the construction of the second autocross course in 1999. According to the associates, these credits were exhausted in April, 2004; thereafter, the new school was required to pay rent.

The fundamental issue in the parties’ disagreement over the second autocross course is whether the second autocross course is covered by the usage agreement or whether it is outside the preexisting usage agreement and thereby subject to additional charges. The court rendered judgment declaring that the use of the second autocross course is subject to the terms of the usage agreement because it is a related facility to the upper area. In its memorandum of decision, the court stated: “Although [the usage agreement map of the upper area] is not drawn to scale, it is my estimation, from my site visit, that the second autocross course is built at least partially within this rectangle. It is also clear to me that the second autocross course is a ‘related facility’ to the first autocross course. It is connected to the first autocross course by short paved roads so that cars can use both courses together as one. A declaratory judgment shall enter that the second autocross is a related facility to the Upper Area and its use is subject to the terms of the Usage Agreement in all respects.”

The standard of review for the interpretation of a contract is well established. “When a party asserts a claim that challenges the trial court’s construction of a contract, we must first ascertain whether the relevant language in the agreement is ambiguous. ... A contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself.” (Citation omitted; internal quotation marks omitted.) David M. Somers & Associates, P.C. v. Busch, 283 Conn. 396, 402-403, 927 A.2d 832 (2007). Whether contractual language is ambiguous is a question of law and is subject to plenary review. LMK Enterprises, Inc. v. Sun Oil Co., 86 Conn. App. 302, 306, 860 A.2d 1229 (2004).

“When the language of a contract is ambiguous, the determination of the parties’ intent is a question of fact, and the trial court’s interpretation is subject to reversal on appeal only if it is clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . Because it is the trial court’s function to weigh the evidence and determine credibility, we give great deference to its findings. ... In reviewing factual findings, [w]e do not examine the record to determine whether the [court] could have reached a conclusion other than the one reached. . . . Instead, we make every reasonable presumption ... in favor of the trial court’s ruling.” (Citation omitted; internal quotation marks omitted.) David M. Somers & Associates, P.C. v. Busch, supra, 283 Conn. 403.

The associates specifically claim that the court’s conclusion that the second autocross is covered by the usage agreement is illogical and wholly unsupported by the evidence. First, the associates argue that because the second autocross course did not exist at the time the usage agreement was signed and because the usage agreement is silent as to the use of future facilities, it was not the intent of the parties that the usage agreement control new facilities like the second autocross course. The associates contend that the court’s finding that the second autocross course is a related facility to the upper area tortures the plain meaning of the language of the usage agreement and ignores the testimony of the associates’ general manager that “[i]t’s incredible to think that by simply putting two little teeny connector roads between two separate pieces of property that they automatically become one .... There are roadways all over the place that connect point A to point B. That doesn’t necessarily mean that that makes it part of a racetrack or a driving school area.” The associates argue that even if deference is given to the court’s estimation that the second autocross course is partially within the designated upper area, it logically follows that some of it is not, and, therefore, the second autocross course is not a related facility and is outside the scope of the usage agreement. Finally, the associates argue that the evidence reveals that the second autocross course was constructed and used primarily for separate, unrelated use by different organizations, and, therefore, the court’s finding was clearly erroneous. We are not persuaded.

We agree with the court that the scope of the phrase, “shall have the right to use the Track, the Upper Area and their associated garages, parking areas and related facilities,” as used in § 2.1 of the usage agreement, is ambiguous. Accordingly, we review the court’s findings to determine if they are clearly erroneous.

The court’s conclusion that the second autocross course is a related facility to the upper area is based in part on the court’s finding that the second autocross course is at least partially within the upper area. This finding is based primarily on the court’s site visit to the track. It has long been held that “a court has discretion to permit the fact-finder, be it court or jury, to view the premises or a location relevant to the trial. . . . Evidence obtained from views is substantive evidence and can independently support a factual finding.” (Citations omitted.) C. Tait, Connecticut Evidence (3d Ed. 2001) § 11.9.1, p. 805; see also Abington, LLC v. Avon, 101 Conn. App. 709, 715 n.5, 922 A.2d 1148 (2007). None of the evidence showed and none of the witnesses claimed that the paving that was done when the second autocross course was constructed was completely outside of the space designated as the upper area. In light of the fact that the maps attached to the usage agreement clearly state “not to scale” and the map used at trial to indicate the location of the second autocross course does not have a scale, the court’s reliance on its site visit to determine that the second autocross course was at least partially within the upper area is sufficient evidence to support the court’s conclusion and is not clearly erroneous.

In addition to its finding as to the geographic relationship of the second autocross course with the upper area, the court found that the second autocross course was sufficiently associated with the upper area for it to be deemed a related facility to the upper area under the usage agreement. In arriving at this conclusion, the court was persuaded by the existence of paved roads connecting the two autocross courses and allowing them to be used as one course. Though the evidence indicates that use of the larger autocross course as one facility is infrequent, it is still sufficient to support the court’s finding that the second autocross course is a related facility to the upper area.

Finally, the court noted the lack of substantial evidence supporting the associates’ contention that the second autocross course was intended to exist outside of the usage agreement. In particular, the board’s minutes make no reference to the specific credit arrangement that the associates claim was approved, the usage agreement was not amended to reflect the second autocross course, the old school used the second autocross course without charge, the new school was not informed that future payments would accrue for its use of the second autocross course when it purchased the old school, and the new school used the second autocross course without charge until 2003. The court discredited the March, 2003 memo, in which the associates describe the claimed credit arrangement, on the basis that it disingenuously coincided with both the new school’s failure to pay its other bills and the time when the associates began to rent the second autocross course separately to a go-karting organization.

Although the record may reveal inconsistent evidence on this issue, “[i]t is the trier’s exclusive province to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness’ testimony.” (Internal quotation marks omitted.) Lusa v. Grunberg, 101 Conn. App. 739, 758, 923 A.2d 795 (2007). We conclude that the evidence is sufficient to support the court’s conclusion that the second autocross course is a related facility to the upper area and is controlled by the terms of the fifteen year usage agreement. The court’s finding was not clearly erroneous.

B

The associates next claim that the court’s finding that there was insufficient evidence of the new school’s compensable use of the B paddock beyond the evidence presented at the prejudgment remedy hearing was improper. “[T]he trial court has broad discretion in determining damages. . . . The determination of damages involves a question of fact that will not be overturned unless it is clearly erroneous.” (Internal quotation marks omitted.) Duplissie v. Devino, 96 Conn. App. 673, 699, 902 A.2d 30, cert. denied, 280 Conn. 916, 908 A.2d 536 (2006).

The following facts are relevant to the disposition of this issue. Generally, the B paddock is used to organize and then to transport different groups of cars out to the track and for overflow parking of race cars and trailers. In addition, the new school occasionally uses the B paddock for driving school activities and exercises. The B paddock is not mentioned by name in the usage agreement; the court found, however, that the B paddock is a “parking area” as provided for in § 2.1. Consequently, the court rendered judgment declaring that “the new school is only entitled to use the B paddock for overflow parking incidental to the track and upper area. Any other use of the B paddock requires the permission of associates and the payment of a fee at retail price.”

Initially, the court found that the record lacked sufficient evidence to prove the number of days that the new school used the B paddock for driving school exercises beyond incidental overflow parking, but in response to the associates’ motion to reargue or for clarification, the court amended its findings. The court stated: “The plaintiffs are correct that the court mistakenly failed to consider all of the evidence submitted, in support of the claim that the new school has used the B paddock for driving school exercises and activities beyond incidental parking. Specifically, the court mistakenly failed to consider testimony at the prejudgment remedy hearing as to the specific number of days of such use. The testimony and exhibits at the prejudgment remedy hearing were, by stipulation, made a part of the record in the trial of this case.” The court ordered the new school to pay the retail price of $1500 per day for conducting driving exercises on the B paddock on forty-six days in 2002 and on thirty-four days in 2003, in accordance with evidence presented at the prejudgment remedy hearing. The court found that “[t]he evidence was insufficient to prove any additional claims of use” beyond what was presented at the prejudgment remedy hearing.

The associates claim that the court’s finding of damages is improper because the evidence presented at trial, supplemented by the evidence from the prejudgment remedy hearing, proves that the new school used the B paddock for driving exercises on a total of forty-six days in 2002, fifty-two days in 2003 and paid only half of the full retail price for fourteen days of use in 2004. The associates claim they are entitled to payment for an additional eighteen days in 2003 and the remaining payment for 2004. We disagree.

At the prejudgment remedy hearing on November 3, 2003, the associates claimed that the new school used the B paddock to conduct driving exercises on forty-six days in 2002 and thirty-four days in 2003. Barber testified at the hearing confirming these numbers but indicating that the tally only went through September, 2003. The parties stipulated that the testimony and exhibits from the prejudgment remedy hearing would be incorporated into the record. At trial, the associates introduced a chart listing claimed underpayments by the new school, intending to update the evidence incorporated into the record from the prejudgment remedy hearing. The numbers in this chart reiterate the new school’s use of the B paddock on forty-six days in 2002, increase the claimed usage in 2003 by eighteen days to a total of fifty-two days and add fourteen days for 2004. The chart also indicates that the new school paid half of each of the fourteen invoices for 2004. The charts for the years 2002 and 2003 have an explanatory asterisk next to the B paddock category: “Items or amounts owed per the terms of the Usage Agreement; invoices not found.” The associates explained that the asterisk indicates that these numbers are not compilations of invoices issued, but rather, compilations of claims taken from track records, as there are no invoices for the new school’s use of the B paddock in 2002 and 2003. Apparently, when the relationship was going well, the associates chose not to bill the new school for its use of the B paddock; once the relationship started to deteriorate, however, the associates tallied all of the new school’s usage information and began to issue invoices. The court admitted the chart as a full exhibit over the new school’s objection to all of the asterisked items because they lacked invoices.

The court found that the evidence presented at the prejudgment remedy hearing proved, by a preponderance of the evidence, the new school’s use of the B paddock but declined to award further damages. Specifically, in response to the associates’ motion to reargue or for clarification, the court expressly stated that there was insufficient evidence to merit further damages beyond the evidence provided in the prejudgment remedy hearing. “This court does not retry the case or evaluate the credibility of the witnesses. . . . This court cannot substitute its own judgment for that of the [trial court] if there is sufficient evidence to support the [trial court’s judgment].” (Citation omitted; internal quotation marks omitted.) DAP Financial Management Co. v. Mor-Fam Electric, Inc., 59 Conn. App. 92, 98-99, 755 A.2d 925 (2000). Accordingly, we affirm the court’s judgment in this regard.

II

CROSS APPEAL BY THE NEW SCHOOL

A

The new school cross appeals from the court’s judgment rejecting its claim that Barber breached his fiduciary duty. Specifically, the new school claims that the court should have required Barber to prove fair dealing by a clear and convincing standard of proof. We agree with the new school.

The following additional facts are relevant to resolution of this issue. In November, 1994, Chrysler Corporation (Chrysler) entered into a written sponsorship agreement with the old school, under which Chrysler agreed to provide Dodge vehicles, engines and yearly monetary payments in exchange for the old school’s promotion of Dodge products. On the same day, Chrysler also entered into a written sponsorship agreement with the associates, under which Chrysler agreed to provide the associates with Dodge vehicles in exchange for the associates’ promotion of Dodge products. It is undisputed that Barber caused a check for $42,500 to be sent to the associates every quarter out of the payment the old school received from Chrysler. The records reflect that $170,000 was transferred annually from the old school to the associates in this manner until the new school’s purchase of the old school in the fourth quarter of 2001. Under the terms of the asset purchase agreement, the new school assumed the old school’s rights and obligations under the Chrysler sponsorship agreement.

The associates assert that the quarterly payments were part of the original sponsorship agreement between Chrysler and the associates. The associates contend that Chrysler refused to enter into agreements with both the old school and the associates unless Chrysler could pay the sponsorship moneys by writing only one check per quarter. In order to appease Chrysler and to secure both agreements, Barber, as the chief executive officer of the old school and the controlling shareholder of the associates during the period at issue, caused the old school to send a quarterly payment for $42,500 to the associates.

In its amended counterclaim of January 14, 2004, the new school claimed that Barber breached his fiduciary duty to the old school by causing the annual transfer of $170,000 from the old school to the associates. The new school alleged that in negotiating the sponsorship contracts, Barber, as the fiduciary for the old school, had a direct conflict of interest and was engaged in self-dealing. As part of this claim, the new school sought reimbursement for the sponsorship moneys that were transferred to the associates from the old school’s Chrysler sponsorship agreement payments. In its memorandum of decision, the court rejected the claim that Barber breached his fiduciary duty, finding that the payments were “perfectly proper” because there was a legitimate oral agreement between the old school and the associates to compensate the associates $170,000 annually. In reaching this decision, the court did not state the standard of proof it applied to this claim. On appeal, the new school claims that the court failed to apply the appropriate standard of proof in its conclusion that Barber did not breach his fiduciary duty. We agree.

“When a party contests the burden of proof applied by the court, the standard of review is de novo because the matter is a question of law.” (Internal quotation marks omitted.) Wieselman v. Hoeniger, 103 Conn. App. 591, 595-96, 930 A.2d 768, cert. denied, 284 Conn. 930, 934 A.2d 245 (2007). “Our law on the obligations of a fiduciary is well settled. [A] fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other. . . . The superior position of the fiduciary or dominant party affords him great opportunity for abuse of the confidence reposed in him. . . . Once a [fiduciary] relationship is found to exist, the burden of proving fair dealing properly shifts to the fiduciary. . . . Furthermore, the standard of proof for establishing fair dealing is not the ordinary standard of fair preponderance of the evidence, but requires proof either by clear and convincing evidence, clear and satisfactory evidence or clear, convincing and unequivocal evidence. . . . Such burden shifting occurs in cases involving claims of fraud, self-dealing or conflict of interest.” (Citation omitted; internal quotation marks omitted.) Heaven v. Timber Hill, LLC, 96 Conn. App. 294, 302-303, 900 A.2d 560 (2006). “A fiduciary seeking to profit by a transaction with the one who confided in him has the burden of showing that he has not taken advantage of his influence or knowledge and that the arrangement is fair and conscientious.” Cadle Co. v. D’Addario, 268 Conn. 441, 457, 844 A.2d 836 (2004). “[W]here there is a transaction, contract, or transfer between persons in a confidential or fiduciary relationship, and where the dominant party is the beneficiary of the transaction, contract, or transfer .. . the burden shifts to the fiduciary to prove fair dealing.” (Internal quotation marks omitted.) Heaven v. Timber Hill, LLC, supra, 303-304.

It is undisputed that Barber owed a fiduciary duty to the old school to abide by the terms of the Chrysler sponsorship contract. It is also undisputed that Barber was the controlling shareholder of the associates at that time and that the associates benefited from the $170,000 annual transfer. The new school’s counterclaim plainly alleged a conflict of interest and self-dealing in Barber’s causing the $170,000 annual transfer from the old school to the associates. Consequently, once evidence was admitted regarding Barber’s dual and conflicting positions of trust, the court should have shifted the burden to Barber to prove fair dealing by clear and convincing evidence. The court did not articulate the standard of proof it applied to this claim. When the court’s memorandum of decision fails to state the applicable standard of proof, “we assume that the usual civil preponderance of the evidence standard was used.” (Internal quotation marks omitted.) Id., 302; see also Tessitore v. Tessitore, 31 Conn. App. 40, 43, 623 A.2d 496 (1993). We, therefore, must remand this portion of the case to the trial court for further proceedings in accordance with the more exacting clear and convincing standard of proof.

B

The new school cross appeals from the court’s judgment declaring the procedure for application of the variable pricing formula of the usage agreement for fees for the track and upper area. Specifically, the new school claims that the correct reading of § 4.2, applying each sentence in its literal sequence, requires that the 50 percent discount attaches after the market comparison price protector sets the average price that the new school is charged by other comparable tracks. We are not persuaded.

The following additional facts are relevant to resolution of this issue. Under exhibit E of the usage agreement, titled “Track and Upper Area Fees. Track Retail Prices,” the prices for use of the track and upper area are fixed for the years 1999, 2000 and 2001. Additionally, exhibit E states: “The retail price for the Upper Area is $1,200 per day. Except for Barber Race Weekends, [the old school] pays % of the Track and Upper Area retail prices.” There were no disputes over the prices charged by the associates until 2001. The usage agreement provides that, after 2001, the prices for the track and upper area are to be calculated in accordance with the procedures outlined in § 4.2. Section 4.2 provides in relevant part: “All prices paid by [the old school] to [the associates] shall be as set forth in this Agreement and shall be fixed for a period of one (1) year after the date hereof, provided that the fees for the Track set forth in Exhibit E shall be fixed until December 31, 2001. After a price ceases to be fixed hereunder, it shall increase . . . (b) for the Track or the Upper Area no more than once each year by an amount so that such price is competitive with both (i) the amount charged therefor by other comparable tracks to Barber, and (ii) the amounts charged by [the associates] therefor to other customers of [the associates]. The fifty percent (50%) discount specified in Exhibit E shall apply to rates for the Track and Upper Area for the period after the fixed period identified in Exhibit E. The prices charged by [the associates] to [the old school] shall be the lowest prices charged by [the associates] to any customer of [the associates] for use of the Track and/or the Upper Area, other than for bona fide charitable events and promotional, marketing and introductory or demonstration events not competitive with the business of [the old school].”

The court found that § 4.2 establishes the price for the new school in the following manner: first, the associates establish the retail price for all users; then, the retail price is reduced by 50 percent, as provided in exhibit E, for weekday use; finally, that amount, the 50 percent of the retail price, is evaluated to see if it violates any of the four price protectors. The court summarized the price protectors in four questions: (1) Has the price charged to the new school been increased more than once in any given year? (2) Is the price charged to the new school competitive with the amounts charged to the new school by comparable tracks? (3) Is the price charged to the new school competitive with the amounts charged by the associates to other customers of the track? and (4) Is the price charged to the new school the lowest price charged by the associates to any customer for use of the track, other than for bona fide charitable events and promotional, marketing or demonstration events not competitive with the business of the new school?

The new school disagrees with the court’s reading of § 4.2, arguing that the proper interpretation of § 4.2 requires that the price be established by following the sequence of the sentences: under the new school’s proposed analysis, the average price the new school is charged by comparable tracks would be the retail price; then, the new school would pay 50 percent of that average price. This analysis ties the retail price the associates charge for all customers at the track to the average price the new school is charged by comparable tracks. We are not persuaded.

The new school does not dispute the court’s finding that, to the extent necessary to resolve this issue, the contract language of § 4.2 is not ambiguous. It is well settled that when the contract language is clear and unambiguous, the determination of the intent of the parties’ agreement is a question of law over which our review is plenary. Bristol v. Ocean State Job Lot Stores of Connecticut, 284 Conn. 1, 7, 931 A.2d 837 (2007).

In interpreting contract language, “[t]he intent of the parties as expressed in a contract is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity .... Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms. . . . Moreover, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous.” (Citation omitted; internal quotation marks omitted.) Trugreen Landcare, LLC v. Elm City Development & Construction Services, LLC, 101 Conn. App. 11, 14, 919 A.2d 1077 (2007).

Having established that the contract language at issue here is unambiguous, we agree with the court’s finding that the common vocabulary used throughout § 4.2 drives the interpretation of this section and produces the most reasonable and equitable result. Section 4.2 uses the words price and rate to differentiate between the actual amount billed to the new school and the retail price charged to all users of the track. Section 4.2 begins, “All prices paid by [the old school] to [the associates]”; (emphasis added); thereby establishing that the word price is defined as the actual amount billed. The second sentence begins, “After a price ceases to be fixed hereunder, it shall increase ... no more than once each year by an amount so that such price is competitive . . . .” (Emphasis added.) This sentence reinforces the conclusion that the word price refers to the actual amount billed to the new school. Finally, in the last sentence of this section, the word price is used two more times to indicate an additional price check that is to be conducted before the final price is billed to the new school. This language establishes that the price protectors are to be applied at the end of the price setting process, just before the bill is sent to the new school. In contrast, the word rate is used to identify the retail price charged by the associates to all of its other customers. According to exhibit E, the new school is to be charged 50 percent of this retail price. The final billing price will remain at 50 percent of the retail price unless it violates one of the price protectors. Admittedly, the sentences in § 4.2 are not applied in their transcribed sequential order; however, a sequential application would torture the plain meaning of the vocabulary.

Additionally, we agree with the court that the new school’s proposed interpretation of § 4.2 would render exhibit E meaningless. The new school’s proposition that it is to be charged 50 percent of the average price the new school is charged by other comparable tracks directly conflicts with exhibit E, which provides a 50 percent discount on the retail price. “The law of contract interpretation militates against interpreting a contract in a way that renders a provision superfluous.” United Illuminating Co. v. Wisvest-Connecticut, LLC, 259 Conn. 665, 674, 791 A.2d 546 (2002). The more reasoned and appropriate interpretation of § 4.2, as established by the court, provides that the new school is billed 50 percent of the retail prices charged by the associates to all customers, as long as the amount does not surpass the price protectors.

On cross appeal, the judgment is reversed only as to the defendant’s claim of breach of fiduciary duty and the case is remanded to the trial court for further proceedings consistent with this opinion; the judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The new school sought and obtained permission to implead the Skip and Judith Barber Charitable Remainder Unitrust as a third party defendant. The third party defendant is not party to this appeal.

       The B paddock is an area of the associates’ race track property adjacent to the maintenance building that consists of a series of paved roads separated by grass.

       The language of the footnote in the March 14, 2003 memo states that the credit amount was $200,000, but the court’s memorandum of decision and the minutes of the board of directors meeting at which the second autocross project was approved indicate a total payment of $242,000.

       At trial, two compilations were admitted within two days of each other. The second compilation corrected several errors identified by the new school. Both documents were identical regarding the B paddock claims. The new school’s brief to this court indicates a discrepancy between days claimed in the two documents. The foundation for this argument is puzzling, however, as the new school relies on a version of the compilation, included in the appendix of its brief, that was not an exhibit at trial, has a date different from any of the similar compilations that were exhibits at trial and is marked “draft.”

       At trial, the associates claimed that the new school owed it a total of $552,500 for just over three years of unpaid Chrysler sponsorship payments that had accrued since the new school purchased the old school and ceased making the payments. The court found that the new school was not obligated to continue the payments, as there was no reference to this alleged $170,000 annual obligation in either the written Chrysler sponsorship agreement or the asset purchase agreement.

       Despite not owning an interest in the old school’s assets during the alleged breach, the new school asserts that under the asset purchase agreement, it acquired the right to bring actions that could have been asserted prior to the signing of the asset purchase agreement. This issue of the new school’s right to bring this action was not contested by the associates on appeal, and, therefore, it is waived.

       The new school also claims that the court’s stated finding in its memorandum of decision that an oral agreement existed between the old school and the associates concerning the Chrysler sponsorship payment of <5170,000 is clearly erroneous. The new school claims that the court’s finding is outside the boundaries of the pleadings, as neither party alleged that the agreement in question existed between the old school and the associates. Furthermore, the new school refers to a statement made at trial by counsel for the associates, which specifically rejects the court’s misunderstanding about the oral argument and clarifies that the agreement was between Barber and Chrysler. As we are remanding the case for a rehearing to apply the proper standard of proof, we need not reach this issue.

       The usage agreement uses the name Barber to reference the old school. When the new school purchased the old school, it assumed all the rights and obligations of the old school under the asset purchase agreement.

       The new school argues that nothing in the usage agreement binds the associates to charge all customers of the track the same retail price and that the associates could create a grossly inflated retail price just for the new school. Although the new school is correct that there is no such language in the usage agreement, by implication the retail price is the price the associates charge to all of its other customers. Furthermore, the new school’s fear is unsubstantiated. The retail prices fixed under the usage agreement, for the years 1999-2001 were in fact the same prices that were charged other customers. There is no evidence that the new school is planning on creating a two tiered set of retail prices in the future.