author: ALVORD, J.

text:
    STATE OF CONNECTICUT v. JARED CHARLES
    (AC 33840)
    Alvord, Espinosa and Sheldon, Js.

      Argued January 6 —
    officially released March 13, 2012

      Darcy McGraw, assistant public defender, for the appellant (defendant).

      Raheem L. Mullins, assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Anne Mahoney, senior assistant state’s attorney, for the appellee (state).
   Opinion

ALVORD, J.

The defendant, Jared Charles, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a, carrying a pistol without a permit in violation of General Statutes § 29-35, criminal possession of a pistol in violation of General Statutes § 53a-217c and possession of narcotics in violation of General Statutes § 2 la-279 (a). On appeal, the defendant challenges the trial court’s jury instructions on the charge of murder. Because we conclude that the defendant expressly waived two of his claims and implicitly waived the remaining two claims, we affirm the judgment of the trial court.

The jury reasonably could have found the following facts from the evidence presented at trial. In the late afternoon of September 25, 2004, the victim, Dennis Faniel, and his cousin, Jayquan Faniel, were riding bicycles in a residential area on Deerfield Avenue in Hartford. The defendant, who was close friends with the victim, was driving in the area, and the victim signaled for him to stop. The defendant parked his car a short distance from where the victim and Jayquan Faniel were then standing and exited his vehicle. While Jayquan Faniel remained with the bicycles at the end of a driveway, the defendant and the victim began talking and walked up that driveway, toward the rear of a house. The victim demanded a cellular telephone that the victim’s brother, then incarcerated, had entrusted to the defendant. The victim’s brother had instructed the defendant to keep it away from the victim. The cellular telephone was valuable because it was used in the illegal drug business and contained the contact numbers of numerous customers. When the defendant refused to give it to the victim, the two men began arguing, and the victim made a fist with his right hand as if preparing to hit the defendant. At that point, Jayquan Faniel moved away from the bicycles. The defendant fired one gunshot, and the victim was hit in the abdomen with a bullet from a nine millimeter semiautomatic firearm. He later died from his injuries.

The defendant fled the scene with a silver gun in his hand. Jayquan Faniel ran to the victim, who had fallen to the ground on his knees, and took the victim’s .38 caliber revolver from him. He chased the defendant and fired five gunshots at him. After he failed to hit the defendant, Jayquan Faniel threw the revolver in a trash can behind one of the neighborhood houses and went home. The defendant, while being pursued by Jayquan Faniel, caught his gray shirt on a fence as he jumped over the fence. He managed to slide out of the shirt and left it behind. The police later retrieved the .38 caliber revolver, the gray shirt with cocaine in one of its pockets and a cellular telephone within the area traveled by Jayquan Faniel and the defendant. The police did not find a nine millimeter weapon.

During the investigation, the police interviewed a witness to the incident. Natasha Walker, a former girlfriend of the victim, was standing outside of her grandfather’s house on Deerfield Avenue when she saw the victim and Jayquan Faniel riding up the street on their bicycles. She also saw the defendant, wearing a gray shirt, approach them when they left their bicycles at the end of the driveway. Because the defendant and the victim walked to the rear of the yard, she did not see the shooting but she did hear the gunshot. She stated that Jayquan Faniel was still at the end of the driveway with the bicycles when the gun was fired. She then saw the defendant run from behind the house with a gun in his right hand, and she heard an additional four or five gunshots shortly after the defendant and Jayquan Faniel fled the scene.

The defendant was arrested and charged in connection with the shooting. After two days of evidence during the defendant’s trial, the parties rested. The jury reached its verdict, which was accepted by the court, and the defendant was sentenced to forty-eight years of incarceration. This appeal followed.

I

The defendant’s first two claims are that the trial court improperly failed to instruct the jury, sua sponte, on self-defense and the lesser included offense of manslaughter. He argues that those instructions were warranted by the evidence at trial and that the court’s failure to give them deprived him of his constitutional right to a fair trial. However, as indicated in this opinion, defense counsel expressly stated to the court that he did not want an instruction on self-defense or any form of manslaughter. Accordingly, we conclude that the defendant has waived these claims on appeal.

On Wednesday, June 20, 2007, before evidence commenced on the second day of trial, the court asked counsel whether each side had received a copy of the court’s initial draft of the jury instructions. After both counsel responded in the affirmative, the court invited the parties to submit their own written jury charge requests. Later that same day, after the defendant had testified and the defense had rested, but before the state’s rebuttal witness took the witness stand, the following discussion took place outside of the presence of the jury. The court asked if counsel would be ready for the charging conference the next day and stated: “Now, you can submit stuff in writing or you can just bring along your thoughts with citations. You have a copy of the court’s initial draft. Obviously, there are some things we have to add to that. Is there a claim of self-defense?” When defense counsel answered, “I would say no,” the court stated that counsel should discuss the matter with his client. At the end of the day, after all of the evidence had been presented, the court excused the jurors and told them to report back to the courtroom the following Monday, June 25, 2007. The court again spoke to counsel about the draft instructions: “Please go through the draft tonight. . . . Let me know what you want added or subtracted. Offhand, we’re going to need, obviously, an instruction on expert witnesses, police officers, prior conviction of a witness, prior conviction of the defendant, one prior misconduct [for] the defendant. I don’t know what else. It doesn’t sound like self-defense to me, but I may be incorrect. I’d like to have you talk to your client about it. My understanding of the evidence is that he testified he and the victim were struggling over a revolver; the victim was shot by a semiautomatic handgun. . . . Well, think it over, [defense counsel]. It’s up to you what you want to do.”

Before the jury entered the courtroom on Monday, June 25, 2007, the court asked counsel if they had received the final draft of the jury instructions on Friday, June 22, 2007, at 4:45 p.m. Defense counsel responded in the affirmative. The court then gave the following summary of the matters discussed at the previous charging conference: “As far as the charge conference is concerned, draft one was handed out by the court about 10 o’clock on June 20, and we discussed whether or not there was going to be a request for self-defense. The next day, on [June 21], we had a charge conference, and [the] defendant indicated he did not want a charge on self-defense. Concerning the testimony of the defendant, I certainly can understand that as a tactical decision. And we brought the defendant in that day even though there was no scheduled court so [defense counsel] could confer with him. Neither side wanted motive. We discussed consciousness of guilt, which is in there. The discussion was between 2:20 and 3:10 in the afternoon. Also, neither side wants any lesser [included offense]. Then on [June 22, 2007], you got a copy [that] was revised, draft two, which was essentially correct except for a few typos. The third version of that came out at 2:45 p.m., and I revised the typos and things, and the final edition [that] I have on my bench came out at 4:45 on Friday afternoon. There’s really no substantive changes to the third version.” The court then asked counsel if there were any “objections or additions or subtractions” with respect to its charging conference summary. No objections or suggestions were made by counsel, and the jury then entered the courtroom to listen to closing arguments.

During his closing argument, defense counsel told the jury: “[The defendant] never said anything about self-defense. That’s the state’s attorney putting words in his mouth. He gave a statement to the police. Never in that statement did he say it was self-defense. In that statement, just like he testified in front of you, he said, I heard a shot go off. The only way it could have come from is from Jayquan, which is totally consistent with the angle.” After the state’s rebuttal argument, the court charged the jury with the instructions agreed upon by the parties. Each juror had a copy of the written jury instructions as the court read them, and the court stated that the jurors could keep their copies throughout their deliberations. After the court completed its charge to the jury, and outside of the presence of the jury, the court asked counsel whether they had any exceptions to the charge as given. Defense counsel and the prosecutor both responded in the negative.

The defendant now claims that the court should have instructed the jury, sua sponte, on self-defense and the lesser included offense of manslaughter, and he requests our review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The state responds that he expressly waived those claims at trial.

“A defendant in a criminal prosecution may waive one or more of his or her fundamental rights. . . . [I]n the usual Golding situation, the defendant raises a claim on appeal [that], while not preserved at trial, at least was not waived at trial. ... [A] constitutional claim that has been waived does not satisfy the third prong of the Golding test because, in such circumstances, we simply cannot conclude that injustice [has been] done to either party ... or that the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial .... This court has stated that among the rights that may be waived by the action of counsel in a criminal proceeding is the right of a defendant to properjury instructions.” (Citations omitted; internal quotation marks omitted.) State v. Kitchens, 299 Conn. 447, 467, 10 A.3d 942 (2011).

“It is well established in Connecticut that unpre-served claims of improper jury instructions are reviewable under Golding unless they have been induced or implicitly waived. The term induced error, or invited error, has been defined as [a]n error that a party cannot complain of on appeal because the party, through conduct, encouraged or prompted the trial corut to make the erroneous ruling. . . . This court has found induced error undeserving of appellate review in the context of a jury instruction claim when the defense has affirmatively requested the challenged jury instruction ... or has encouraged or prompted the court to refrain from giving an instruction that arguably should have been given.” (Citations omitted; internal quotation marks omitted.) Id., 468-69. “[T]o allow [a] defendant to seek reversal [after] ... his trial strategy has failed would amount to allowing him to induce potentially harmful error, and then ambush the state [and the trial court] with that claim on appeal.” (Internal quotation marks omitted.) State v. Gibson, 270 Conn. 55, 67, 850 A.2d 1040 (2004).

In the present case, the defendant’s first two claims fail under the third prong of Golding. The record clearly reflects that he expressly waived his right to challenge the failure of the court to instruct the jury, sua sponte, on self-defense and the lesser included offense of manslaughter. Defense counsel induced the unpreserved error of which he now complains by telling the court that he did not want an instruction on self-defense or any lesser included offense, by telling the jury during his closing argument that the defendant never claimed that he acted in self-defense, and by failing to take any exception to the jury charge as given by the court. Accordingly, we do not reach the merits of the defendant’s claims.

II

The defendant’s remaining two claims are that the trial court (1) improperly instructed the jury on both general intent and specific intent with respect to the murder charge and (2) improperly instructed the jury with respect to drawing inferences from circumstantial evidence as applied to the element of intent for the murder charge. The defendant took no exception to these challenged instructions at trial, and he consequently requests our review under Golding. The state responds that the defendant implicitly waived these unpreserved challenges because he acquiesced in the challenged instructions after being provided with a meaningful opportunity to review them.

As previously discussed, the defendant received the first draft of the court’s proposed jury instructions on Wednesday morning, June 20, 2007, which was the second day of trial. Later that same day, the court instructed counsel to review the charge that evening and to inform the court as to suggested additions or subtractions. On the next scheduled day of trial, which was Monday, June 25, 2007, the court summarized on the record the charging conference held on Thursday, June 21, 2007. During the summary, it stated that the fourth revised and final version of the jury instructions had been made available to counsel at 4:45 p.m. on Friday, June 22, 2007. The court asked if the parties had any objections or additions to its summary, and none were made by counsel. The court then read the approved instructions to the jurors. Neither the state nor the defendant took any exceptions to the charge as given.

In State v. Kitchens, supra, 299 Conn. 482-83, our Supreme Court held that “when the trial court provides counsel with a copy of the proposed jury instructions, allows a meaningful opportunity for their review, solicits comments from counsel regarding changes or modifications and counsel affirmatively accepts the instructions proposed or given, the defendant may be deemed to have knowledge of any potential flaws therein and to have waived implicitly the constitutional right to challenge the instructions on direct appeal.” Moreover, “[a]ctua! discussion of the instruction later challenged is not required. ” State v. Mungroo, 299 Conn. 667, 676, 11 A.3d 132 (2011).

Here, defense counsel had a meaningful opportunity to review the court’s written instructions and to object to any language therein. He proposed no instructions of his own and took no exceptions to the charge as given. Because defense counsel’s actions at trial constitute an implicit waiver of the challenged instructions under these circumstances, the defendant’s remaining two claims fail under the third prong of Golding,

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant does not specify which degree of manslaughter should have been included in the charge to the jury.

       Under Golding, “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.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       With respect to the second prong of Golding, we also note that a defendant must assert a claim of self-defense and present evidence to warrant a jury instruction on the defense in order to implicate a constitutional right. State v. Solomon, 103 Conn. App. 530, 535, 930 A.2d 716 (2007). Further, our Supreme Court does not recognize the right to have a jury charged on lesser included offenses to be one of constitutional dimension. See State v. Jacobowitz, 194 Conn. 408, 413, 480 A.2d 557 (1984).

       Furthermore, it would be inappropriate for the trial court to charge the jury, sua sponte, on a theory that is contrary to the defendant’s stated position. See State v. Jeffrey, 220 Conn. 698, 717-19, 601 A.2d 993 (1991), cert. denied, 505 U.S. 1224, 112 S. Ct. 3041, 120 L. Ed. 2d 909 (1992); State v. Williams, 44 Conn. App. 231, 239, 689 A.2d 484, cert. denied, 240 Conn. 918, 692 A.2d 815 (1997).

       The defendant also seeks review of these claims under the plain error doctrine. See Practice Book § 60-5. “It is well settled . . . that when a right has been affirmatively waived at trial, we generally do not afford review under either Golding or the plain error doctrine . . . .” (Internal quotation marks omitted.) State v. Bharrat, 129 Conn. App. 1, 17, 20 A.3d 9, cert. denied, 302 Conn. 905, 23 A.3d 1243 (2011).

       The defendant also seeks review of these two claims under the plain error doctrine. See Practice Book § 60-5. The finding of a valid waiver, however, precludes a finding that the challenged instructions constitute plain error because “a valid waiver means that there is no error to correct.” State v. Kitchens, supra, 299 Conn. 474 n.18.


source: Caselaw Access Project

author: DiPENTIMA, C. J.

license: Public Domain

text:
    MARIANNE OLSON v. FUSAINI MOHAMMADU
    (AC 32889)
    DiPentima, C. J., and Alvord and Foti, Js.

      Argued November 15, 2011 —
    officially released March 13, 2012

      John F. Morris, for the appellant (defendant).

      Kathleen M. Grover, for the appellee (plaintiff).
   Opinion

DiPENTIMA, C. J.

The defendant, Fusaini Moham-madu, appeals from the judgment of the trial court denying his postjudgment motion for modification of alimony and child support orders. On appeal, the defendant claims that the court erred in declining to find a substantial change in his circumstances. We disagree and, accordingly, affirm the judgment of the trial court.

The following factual and procedural history is relevant to our discussion. The parties were married on June 7, 2001. During the marriage, the parties had one child together. In September, 2008, the plaintiff, Marianne Olson, who resided in Connecticut with her son, filed a dissolution of marriage action against the defendant, who at that time resided in Florida. On August 5, 2009, the court rendered judgment dissolving the parties’ marriage. In its orders contained in that judgment, the court awarded joint legal custody of the minor child with primary physical custody to the plaintiff and reasonable visitation rights to the defendant in Connecticut.

The court further ordered the defendant to pay to the plaintiff periodic alimony in the amount of $777 per week. The court ordered that the alimony “shall be modifiable only as to amount” and “shall terminate upon the earliest of the happening of one of the following events . . . [the] death of either party . . . [the] [w]ife’s remarriage; or . . . five (5) years from the date of dissolution.” In addition, the court ordered the defendant to pay child support in the following amounts: $334 per week and 66 percent of day care, extracurricular activities and unreimbursed medical and dental expenses for the benefit of the minor child.

Pursuant to General Statutes § 46b-86 (a), the defendant filed a motion to modify his alimony and child support obligations on April 14, 2010, and an amended motion to modify on June 18, 2010. In the amended motion, the defendant, a resident of Florida, claimed that he had a substantial change in circumstances as a result of his relocation to Connecticut and new employment at a substantially reduced salary. After a hearing on October 25, 2010, the court denied the defendant’s amended motion. The court based its decision denying the motion for modification on the “voluntary nature of the [defendant’s] income change,” finding that the defendant’s “motivation might have been a good parental decision, [but] it was a decision that ignored the realities of his financial obligation as set forth in the [dissolution] judgment issued just months earlier.” This appeal followed.

During the pendency of this appeal, the defendant filed a motion for articulation, which the court granted in part. In that articulation, the court stated that it did not consider the defendant’s relocation, or his alleged reduction in income as a result of the relocation, to be a substantial change in circumstances because the move was a voluntary action on the part of the defendant.

We initially set forth the well established standard of review and principles of law relevant to the defendant’s appeal. “The standard of review in family matters is well settled. An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... It is within the province of the trial court to find facts and draw proper inferences from the evidence presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . [T]o conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did.” (Internal quotation marks omitted.) Elia v. Elia, 99 Conn. App. 829, 831, 916 A.2d 845 (2007).

“[General Statutes] § 46b-86 (a) . . . provides that a final order for alimony [or child support] may be modified by the trial court upon a showing of a substantial change in the circumstances of either party. . . . Under that statutory provision, the party seeking the modification bears the burden of demonstrating that such a change has occurred. . . . Alimony decrees [and child support orders] may only be modified upon proof that relevant circumstances have changed since the original decree was granted. ... In general the same sorts of [criteria] are relevant in deciding whether the decree may be modified as are relevant in making the initial award of alimony [or child support]. They have chiefly to do with the needs and financial resources of the parties. ... To obtain a modification, the moving party must demonstrate that circumstances have changed since the last court order such that it would be unjust or inequitable to hold either party to it. Because the establishment of changed circumstances is a condition precedent to a party’s relief, it is pertinent for the trial court to inquire as to what, if any, new circumstance warrants a modification of the existing order. In making such an inquiry, the trial court’s discretion is essential. The power of the trial court to modify the existing order does not, however, include the power to retry issues already decided ... or to allow the parties to use a motion to modify as an appeal. . . . Rather, the trial court’s discretion includes only the power to adapt the order to some distinct and definite change in the circumstances or conditions of the parties.” (Citations omitted; internal quotation marks omitted.) Borkowski v. Borkowski, 228 Conn. 729, 734-38, 638 A.2d 1060 (1994); see also Budrawich v. Budrawich, 132 Conn. App. 291, 295-96, 32 A.3d 328 (2011).

“As to the substantial change of circumstances provision of § 46b-86 (a), [w]hen presented with a motion for modification, a court must first determine whether there has been a substantial change in the financial circumstances of one or both of the parties. . . . Second, if the court finds a substantial change in circumstances, it may properly consider the motion and . . . make an order for modification. ... A party moving for a modification of a child support order must clearly and definitely establish the occurrence of a substantial change in the circumstances of either party that makes the continuation of the prior order unfair and improper. . . . The power of the trial court to modify the existing order does not, however, include the power to retry issues already decided ... or to allow the parties to use a motion to modify as an appeal. . . . Rather, [t]he court has the authority to issue a modification only if it conforms the order to the distinct and definite changes in the circumstances of the parties. . . . The inquiry, then, is limited to a comparison between the current conditions and the last court order. . . . The party seeking modification bears the burden of showing the existence of a substantial change in the circumstances.” (Citations omitted; internal quotation marks omitted.) Weinstein v. Weinstein, 104 Conn. App. 482, 492-93, 934 A.2d 306 (2007), cert. denied, 285 Conn. 911, 943 A.2d 472 (2008).

The defendant essentially argues on appeal that the court should have applied a “totality of the circumstances” test to the first prong as recited in Weinstein. Specifically, the defendant argues that the court should have looked beyond the voluntariness of the defendant’s action in relocating to Connecticut and considered the motivation behind the voluntary action as part of a “totality of the circumstances” test.

The defendant cites Doody v. Doody, 99 Conn. App. 512, 914 A.2d 1058 (2007), for the proposition that the trial court should have taken a “totality of the circumstances” approach in determining whether there was a substantial change in the defendant’s circumstances. The defendant’s reliance on Doody is misplaced, as the “totality of the circumstances” referred to in that case is the broad fact-finding ability of a trial court and is not an application of the test applied for determining whether a substantial change exists warranting a modification of alimony or child support orders.

Additionally, in arguing that the trial court should have looked beyond the voluntariness of the defendant’s conduct in relocating to Connecticut, the defendant contends that the court should consider the public policies implicated and elements of fairness. We are not persuaded. As noted previously, the court’s determination process in modifying alimony and child support has two parts. “Simply put, before the court may modify an alimony award pursuant to § 46b-86, it must make a threshold finding of a substantial change in circumstances with respect to one of the parties.” Schade v. Schade, 110 Conn. App. 57, 63, 954 A.2d 846, cert. denied, 289 Conn. 945, 959 A.2d 1009 (2008). After a court has made this threshold finding, the same criteria used to determine an initial award of alimony are relevant to the question of modification. See Borkowski v. Borkowski, supra, 228 Conn. 743. Only then, after a finding of substantial change, can the trial court “consider the causes for a party’s substantial change of circumstances.” Id. Although the defendant urges us to adopt a “totality of the circumstances” test in determining whether there has been a substantial change in circumstances, the proper test for such a determination has been set forth by our Supreme Court. See Borkowski v. Borkowski, supra, 737. It is axiomatic that this court is bound by the precedent set forth by our Supreme Court. See, e.g., Stuart v. Stuart, 297 Conn. 26, 45-46, 996 A.2d 259 (2010).

We now consider whether the court properly concluded that there was no substantial change in the defendant’s circumstances warranting a modification of alimony or child support. “A conclusion that there has been a substantial change in financial circumstances justifying a modification of alimony based only on income is erroneous; rather, the present overall circumstances of the parties must be compared with the circumstances existing at the time of the original award to determine if there has been substantial change.” (Internal quotation marks omitted.) Gay v. Gay, 70 Conn. App. 772, 781, 800 A.2d 1231 (2002), aff'd in part, 266 Conn. 641, 835 A.2d 1 (2003). The court found that the defendant voluntarily left his more than two year employment in Florida and took a lower paying position in Connecticut, ignoring his financial obligations under the dissolution judgment rendered fifteen months earner. The defendant’s purported substantial change in circumstances was brought about by his unilateral action in leaving his employment in Florida and moving to Connecticut. While the court noted that there might have been a good parental motivation underlying the defendant’s relocation, the court was correct not to reach the defendant’s motivation in its determination that the defendant failed to prove a substantial change in circumstances. In its articulation, the court relied on Sanchione v. Sanchione, 173 Conn. 397, 378 A.2d 522 (1977), to support its conclusion that a change in income resulting from a voluntary decision does not constitute a substantial change in circumstances. The court concluded that the defendant’s “[i]nability to pay does not automatically entitle [him] to a decrease of an alimony [or child support] order. It must be excusable and not brought about by the defendant’s own fault.” (Internal quotation marks omitted.) Id., 407. In Sanchione, the court lists a number of factors that could be considered to be brought about by the defendant’s own fault, including “whether the [defendant’s] expenses were greater than necessary, whether his inability to pay was a result of his own extravagance, neglect, misconduct or other unacceptable reason . . . .” (Emphasis added.) Id. The court also cited Prial v. Prial, 67 Conn. App. 7, 10-13, 787 A.2d 50 (2001), in which this court held that the trial court abused its discretion in finding a substantial change in circumstances where the plaintiff father had voluntarily terminated his well compensated long-term employment prior to the divorce judgment but then sought modification after briefly acquiring a low wage hourly position before quitting. In the present case and consistent with case law, the court reasonably could have concluded that the defendant’s unilateral action in the face of his financial obligations set forth in the dissolution judgment was an unacceptable reason that did not justify a finding of a substantial change in circumstances.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs last name has been spelled as “Olsen” and “Olson” during these proceedings. During the October 25, 2010 proceeding and on the tax documents submitted as exhibits at trial, the plaintiff spelled her name “Olson.”

       Since the rendering of the dissolution judgment on August 5, 2009, the plaintiff has filed seven motions for contempt to recover missed payments of attorney’s fees, child care costs, medical expenses, child support and alimony from the defendant. On two occasions the court found the defendant in contempt of the court’s orders.

       General Statutes § 46b-86 (a) provides in relevant part that “[u]nless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support, an order for alimony or support pendente lite or an order requiring either party to maintain life insurance for the other party or a minor child of the parties may, at any time thereafter, be continued, set aside, altered or modified by the court upon a showing of a substantial change in the circumstances of either party . . . ." (Emphasis added.)

       In his first motion to modify, the defendant claimed that he was unemployed and had no significant income or assets, and did not have the ability to meet his financial obligations. In his amended motion to modify, the defendant claimed that he had relocated from Florida to Connecticut and obtained new employment, but at a substantially reduced salary.

       The defendant on appeal does not challenge the court’s factual finding of voluntariness.

       An examination of the “totality of the circumstances” that the defendant quotes from Doody is in fact from the standard of review in that case. “This court, of course, may not retry a case. . . . The factfinding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties, which is not fully reflected in the cold, printed record which is available to us. Appellate review of a factual finding, therefore, is limited both as a practical matter and as a matter of the fundamental difference between the role of the trial court and an appellate court.” (Emphasis added; internal quotation marks omitted.) Doody v. Doody, supra, 99 Conn. App. 516-17.

       The defendant cites Greco v. Greco, 275 Conn. 348, 363, 880 A.2d 872 (2005), for the proposition that public policy and basic fairness should be considered by the court in determining if there has been a substantial change in the defendant’s circumstances. Greco does not involve a posfjudgment modification and, to the extent that the defendant cites Greco for the broad equitable powers of the court in domestic relations cases, the case is clearly distinguishable. In Greco, our Supreme Court concluded that the trial court had abused its discretion in awarding the plaintiff in a dissolution of marriage action 98.5 percent of the marital property plus alimony and attorney’s fees exceeding the defendant’s income. Id., 363.

       Our Supreme Court in Borkowski explained the bifurcation of the inquiry for a modification of alimony or child support orders. “By so bifurcating the trial court’s inquiry, however, we did not mean to suggest that a trial court’s determination of whether a substantial change in circumstances has occurred, and its determination to modify alimony, are two completely separate inquiries. Rather, our bifurcation of the trial court’s modification inquiry was meant to reflect that, under our statutes and cases, modification of alimony can be entertained and premised upon a showing of a substantial change in the circumstances of either party to the original dissolution decree.
      . . . Thus, once the trial court finds a substantial change in circumstances, it can properly consider a motion for modification of alimony. After the evidence introduced in support of the substantial change in circumstances establishes the threshold predicate for the trial court’s ability to entertain a motion for modification, however, it also naturally comes into play in the trial court’s structuring of the modification orders.” (Citation omitted.) Borkowski v. Borkowski, supra, 228 Conn. 737.

       The defendant claims that his new employment in Connecticut was “at a substantially reduced salary.” His gross income at his new position is $150,000 as compared with the $180,000 at his position in Florida; however, his new contract affords him the possibility of receiving further compensation in the form of incentives and merit increases. The court also noted that with the defendant residing in Connecticut, travel expenses for the defendant to visit with his son would be decreased.

       The defendant also claims that while he was living in Florida he was having problems gaining parenting time and access to his child, which he claims was part of his reason for moving to Connecticut. The defendant’s assertion regarding visitation access is part of his motivation for leaving his position in Florida and moving to Connecticut. We decline to review this argument, as we have already concluded that the trial court did not err in making its threshold finding that there has not been a substantial change in circumstances. Evidence of his motivation behind such a voluntary action would only be relevant if such a threshold finding had been met. See Borkowski v. Borkowski, supra, 228 Conn. 737.


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. ANDREAS P. LEWIS, JR.
    (AC 33198)
    Alvord, Bear and West, Js.
    Argued February 8 —
    officially released March 13, 2012

      James B. Streeto, assistant public defender, for the appellant (defendant).
    . RoccoA. Chiarenza, deputy assistant state’s attorney, with whom, on the brief, were Maureen Platt, state’s attorney, Susan C. Marks, supervisory assistant state’s attorney, and David A. Gulick, senior assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Andreas P. Lewis, Jr., appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and breach of the peace in the second degree in violation of General Statutes § 53a-181 (a) (l). On appeal, the defendant claims that the court improperly denied his timely request to poll the jury. We agree and, therefore, reverse the judgment of the trial court.

The following facts are necessary for our disposition of the defendant’s claim. Following deliberations, the jury returned a guilty verdict and the court then ordered the verdict accepted and recorded. After the jury returned its verdict, the court provided further instructions to the jury and thanked it for its service. During those instructions, the defendant interjected to request a poll of the jury. Despite the defendant’s request to conduct a poll pursuant to Practice Book § 42-31, the court stated that the jury already had been discharged, declined to poll the jury and dismissed the jury to the assembly room. The defendant asked that the record reflect that the jury still was present in the courtroom when the defendant made his request to poll the jury, and the court replied that the record would so reflect.

Clearly, the record reflects that the defendant requested that the jury be polled and that the court denied the request. “Our review of the defendant’s claim necessarily includes consideration of [whether the defendant made] a timely request to poll the jury. A request to poll the jury is timely within the parameters of Practice Book § 42-31 if it is submitted prior to the jury’s discharge. ‘[T]he discharge of a jury is not triggered by its departure from the courtroom, but, rather, by the separation and dispersal of its individual members.’ State v. Pare, [253 Conn. 611, 629-30, 755 A.2d 180 (2000)]. Prior to the time jurors separate and disperse, they are unlikely to come into contact with outside influences that could taint any subsequent poll.” (Emphasis in original.) State v. James P., 96 Conn. App. 93, 100, 899 A.2d 649, cert. denied, 280 Conn. 910, 908 A.2d 540 (2006).

In making his claim, the defendant relies on our Supreme Court’s decision in State v. Pare, supra, 253 Conn. 611, in which it held that “pursuant to [Practice Book] § 42-31, a trial court’s obligation to poll the jury upon a timely request from either party is mandatory”; State v. Pare, supra, 621; and that a violation of that rule of practice “requires automatic reversal of the judgment.” Id., 639. The state concedes that the defendant made a timely request to poll the jury while the jury remained in the courtroom, which mandated that the court order the clerk of the court to poll the jurors individually. Further, the state concedes that in accordance with Pare, the court’s refusal to poll the jury after a timely request is not subject to harmless error analysis and requires automatic reversal. See id., 638-39. We agree and therefore conclude that the court’s denial of the defendant’s timely request to poll the jurors individually requires automatic reversal of the judgment.

The judgment is reversed and the case is remanded for a new trial.

       The court sentenced the defendant to a total effective sentence of thirteen years incarceration, suspended after eight years, and five years probation.

       On appeal, the defendant also claims that (1) the court failed to take steps to ensure that the defendant received a proper night’s sleep during the trial, therefore depriving him of his constitutional rights, (2) the court improperly barred the defendant from presenting a critical witness under a sequestration order and (3) the state’s attorney committed prosecutorial impropriety during the trial and in his closing argument to the jury. We do not reach the merits of the defendant’s other claims because they are unlikely to arise on retrial. See State v. Jones, 289 Conn. 742, 769 n.25, 961 A.2d 322 (2008).

       Practice Book § 42-31 provides: “After a verdict has been returned and before the jury have been discharged, the jury shall be polled at the request of any party or upon the judicial authority’s own motion. The poll shall be conducted by the clerk of the court by asking each juror individually whether the verdict announced is such juror’s verdict. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or they may be discharged.” We note that § 42-31 applies only in criminal trials.


author: ROBINSON, J.

text:
    MICHAEL HANNAFORD, ADMINISTRATOR (ESTATE OF RUTH GORYN) v. DAVID MANN ET AL.
    (AC 32731)
    Robinson, Alvord and Pellegrino, Js.

      Argued October 28, 2011 —
    officially released March 20, 2012

      William J. Sweeney, Jr., for the appellant (plaintiff).

      Peter M. Van Dyke, for the appellee (named defendant).
   Opinion

ROBINSON, J.

The plaintiff, Michael Hannaford, acting in his capacity as the administrator for the estate of his aunt, Ruth Goryn, appeals from the judgment of the trial court denying his motion for summary judgment on count one of his complaint against the defendant, David Mann, and granting the defendant’s cross motion for summary judgment on count one. The plaintiff argues that the court erred by determining that a deed and a power of attorney given to the defendant by Goryn were valid despite the fact that the defendant acted as an attesting witness to both documents. We agree and, therefore, reverse the judgment of the trial court.

The following facts are not in dispute. The defendant befriended Goryn while performing general landscaping duties for her at her home in Glastonbury (Glastonbury property). On March 26, 2009, Goryn executed a quitclaim deed purporting to convey the Glastonbury property to the defendant. That same day, Goryn signed a document giving the defendant her power of attorney and appointing the defendant as her health care agent. Both the deed and the power of attorney were acknowledged before a notary public and were attested to by two witnesses, one of whom was the defendant.

The deed was recorded on the Glastonbury land records on May 19,2009, the day after Goryn was admitted to Hartford Hospital, where she died on May 22, 2009. On June 30, 2009, the Probate Court for the district of Glastonbury appointed the plaintiff as administrator of Goryn’s estate. On July 1, 2009, the plaintiff commenced this action and recorded a notice of lis pendens as to the Glastonbury property.

The plaintiff alleged in count one of the complaint that the quitclaim deed and the power of attorney that Goryn executed in favor of the defendant were invalid because the defendant acted as a witness to both. According to the complaint, the defendant has possession of the Glastonbury property “and has taken for his own use personal property located within the home which rightfully belongs to the [e]state.” The plaintiff also alleged that the defendant used the power of attorney to withdraw a substantial amount of money from several of Goryn’s bank accounts. By way of relief, the plaintiff sought a declaration that the quitclaim deed and the power of attorney were invalid and an order requiring the defendant to return all personal and real property conveyed or transferred to the defendant pursuant to the quitclaim deed or the power of attorney.

The plaintiff filed a motion for summary judgment claiming that, because the quitclaim deed and the power of attorney were not properly executed and witnessed according to statute; General Statutes §§ 1-43 and 47-5 (a); he was entitled to summary judgment on count one as a matter of law. The defendant filed a combined opposition to the plaintiffs motion for summary judgment and cross motion for summary judgment. The defendant argued that he was a proper witness to the deed and to the power of attorney and that, because the propriety of his acting as a witness to those documents was the only challenge raised by the plaintiff as to the validity of the documents, he was entitled to summary judgment in his favor.

The court heard argument on the motions for summary judgment, at which time both parties agreed that there were no genuine issues of material fact in dispute surrounding the execution of the deed and the power of attorney and that the issue before the court was purely legal in nature. Both parties agreed that the plaintiffs decedent signed the written documents in question and that her signature properly was acknowledged before a notary public. Further, the parties agreed that each document contains the signatures of two witnesses, one of whom was the defendant. There is no challenge to the validity of the other witness. The sole issue before the court, therefore, was whether the quitclaim deed and the power of attorney were rendered invalid as a matter of law because the defendant acted as one of the attesting witnesses. On September 14, 2010, the court issued a written decision in which it concluded that the presence of the defendant as a witness to the quitclaim deed and to the power of attorney did not render them invalid. The court denied the plaintiffs motion for summary judgment and granted the defendant’s motion for summary judgment. This appeal followed.

The following standard of review is applicable to the claims raised in the present appeal. “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. ... On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . Our review of the trial court’s decision to grant [a party’s] motion for summary judgment is plenary.” (Internal quotation marks omitted.) Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).

In the present appeal, the plaintiff challenges the court’s determination that the quitclaim deed and the power of attorney were valid as a matter of law and, therefore, that the defendant was entitled to judgment as a matter of law on count one of the complaint. Accordingly, we must decide whether the court’s determination concerning the validity of the documents was legally and logically correct.

We first turn to the validity of the quitclaim deed. The plaintiff claims in his brief that there is a “genuine issue of material fact as to the validity of the quitclaim deed and the defendant is not entitled to judgment as a matter of law.” As previously stated, however, the issue before the trial court, and now this court on review, does not implicate any disputed facts but presents a pure question of law. For the following reasons, we conclude that the court’s decision to render summary judgment in favor of the defendant upholding the validity of the deed was not legally and logically correct.

“General Statutes § 47-5 sets out formal requirements for conveyances of real property.” Treglia v. Zanesky, 67 Conn. App. 447, 449, 788 A.2d 1263 (2001), cert. denied, 259 Conn. 926, 793 A.2d 252 (2002). Section 47-5 provides in relevant part that “(a) All conveyances of land shall be: (1) In writing; (2) if the grantor is a natural person, subscribed, with or without a seal, by the grantor with his own hand .... (3) acknowledged by the grantor, his attorney or such duly authorized person to be his free act and deed; and (4) attested to by two witnesses with their own hands. . . .” There is no dispute between the parties that the first three requirements were met in the present case. The controversy concerns compliance with the fourth requirement; specifically, whether the defendant as the grantee properly could act as one of the two attesting witnesses.

In its decision on the motions for summary judgment, the court correctly noted that the statute itself is silent as to who properly may act as a witness to a deed. The court suggests that in support of his argument that the defendant was not a proper witness to the deed, the plaintiff “primarily relies” on an early Supreme Court case, Winsted Savings Bank & Building Assn. v. Spencer, 26 Conn. 194 (1857) (Winsted Savings Bank). In fact, the plaintiff never raised or cited Winsted Savings Bank in support of his argument; rather, that case was first discussed in the defendant’s opposition and cross motion for summary judgment. It is nevertheless helpful to begin our analysis with a discussion of Winsted Savings Bank.

The court in Winsted Savings Bank held that witnesses to a deed must be disinterested at the time of attestation. Id., 198-200. The court explained: “[T]his is an ancient statute, and as we suppose, has by the profession always been considered as requiring that deeds should be attested by disinterested or competent witnesses; witnesses who could testify in court in respect to the execution upon any controversy that might arise in respect to it.” Id., 199. Ultimately, the court determined that a shareholder of a corporation was not disinterested as to a mortgage deed given to the corporation, and, thus, the shareholder could not act as a witness to that deed. Id. 199-200. The grantee of a deed, as its direct beneficiary, has a more direct pecuniary interest in the transaction, and, therefore, under the rationale of Winsted Savings Bank, a grantee could never act as an attesting witness to a deed.

The trial court rejected any notion that the holding in Winsted Savings Bank provided a basis for finding that the quitclaim deed in the present case was invalid, stating that “[t]he current state of the law ... is much more forgiving” and that “no modem case in Connecticut has made a ruling that the witness to a deed must be disinterested . . . .” In support of its rejection of the holding in Winsted Savings Bank, the court relied on our decision in Giannopoulos v. Corbin, 7 Conn. App. 601, 509 A.2d 1075 (1986).

In Giannopoulos, a defendant in a summary process action appealed from her unsuccessful objection to the admission of a warranty deed evidencing her transfer of the subject premises to the plaintiffs. Id., 602. The defendant argued at trial and on appeal that the deed was invalid because the two witnesses to the deed— the defendant’s attorney and her real estate agent— were not disinterested as required by Winsted Savings Bank. Id. and n.l. Ultimately, this court concluded that the trial court did not err by admitting the deed into evidence because “[a]ny defect with the witnessing . . . was cured by the validating act of 1983; Spec. Acts 1983, No. 83-7, § 12; which provided] in pertinent part: ‘any deed . . . made for the purpose of conveying . . . real property in any way . . . which . . . was attested by one witness or by no witnesses . . . [is] validated.’ ” Giannopoulos v. Corbin, supra, 7 Conn. App. 603.

Before reaching that conclusion, however, this court also briefly mentioned General Statutes § 52-145 (a). Id. The court stated: “[T]he enactment of ... § 52-145 (a), which provides in relevant part that ‘[a] person shall not be disqualified as a witness in any action because of, (1) his interest in the outcome of the action as a party or otherwise . . . .’ overcomes the objection [to the admission of the deed into evidence] since interest no longer disqualifies one from being a witness in a case or from being able to testify to the execution of a deed.” Id.

The court in the present case, relying on the implication in Giannopolous that the legislature’s enactment of § 52-145 (a) overruled Winsted Savings Bank, concluded that “witnesses with an interest are not disqualified or invalid” and, therefore, determined that the defendant’s presence as a witness did not render the quitclaim deed invalid. The court, however, did not adequately address the plaintiffs actual argument, which was not simply that the defendant was disqualified to act as a witness because he was an interested party but, rather, that he was disqualified because, as the grantee of the deed, he was more than just an interested witness, he was an actual party to the transaction. The court rejected the argument, stating only that there are no cases on record that have distinguished an interested witness from one who is a beneficiary of a deed; however, that observation does not mean that such a distinction is unwarranted.

In construing the requirement in § 47-5 that a valid deed must be attested to by two witnesses, we are cognizant that “[t]he principles of statutory construction . . . require us to construe a statute in a manner that will not thwart its intended purpose or lead to absurd results.” (Internal quotation marks omitted.) Coppola v. Coppola, 243 Conn. 657, 665, 707 A.2d 281 (1998). The use of subscribing witnesses to a deed serves the purpose of assuring that the conveyance is genuine and not fraudulent. Webster Bank v. Flanagan, 51 Conn. App. 733, 739, 725 A.2d 975 (1999). The two witnesses in Giannopolous — the grantor’s attorney and her real estate agent — had only an indirect interest in the conveyance that they witnessed as distinguished from the direct interest of a grantor or a grantee. There is a more profound risk of a fraudulent conveyance if grantors and grantees are permitted to act as the statutorily required witnesses to their own deeds. Reading § 47-5 (a) (4) as allowing such a procedure essentially would evade and render superfluous the statutory requirement that a deed be attested to by two witnesses. “Because [e]very word and phrase [of a statute] is presumed to have meaning ... [a statute] must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant.” (Internal quotation marks omitted.) PJM & Associates, LC v. Bridgeport, 292 Conn. 125, 138, 971 A.2d 24 (2009).

The defendant argues in his brief that the legislature has included language in other statutory provisions specifying who may or may not act as a witness. For example, General Statutes § 19a-576, which authorizes a person to execute a document appointing a health care representative, provides in relevant part that “ [t]he person appointed as representative shall not act as witness to the execution of such document or sign such document.” The defendant would have us conclude that the lack of language in § 47-5 indicating who can act as a witness to a deed means that anyone legally may act as a witness. We cannot conclude, however, that the legislature’s failure to state expressly that a grantor or grantee may not act as an attesting witness indicates an intent to condone such a practice, as such a reading would thwart the intended purpose of the witness requirement.

There is additional legal support for concluding that the grantee of a deed cannot act as a witness to that deed. Corpus Juris Secundum notes that “[a]s a general rule, one who is a party to a deed ... is not a competent attesting witness, as where he or she is a grantee or a cograntor.” 26A C.J.S. 95-96, Deeds § 67 (2011). Also, the standards of title of the Connecticut Bar Association provide: “Interested parties can act as witnesses to a deed, although under no circumstances may the grantor or grantee witness the deed.” Connecticut Bar Association, Connecticut Standards of Title (1999), standard 9.2. Comment one of that standard states: “Today, a spouse can witness the deed of the other spouse; officers and agents of a corporation, the deed of the corporation; and interested persons, the deed of the land in which they may have an indirect interest. No person is deemed disqualified even though at some point he had an interest in the property by way of mortgage, lease or other interest. However, under no circumstances may the grantor or grantee witness the deed.'” (Emphasis added.) Id. Although the standards of title are not controlling authority, they nevertheless are persuasive to the extent that they establish the custom in the legal community; Porter v. Morrill, 108 Conn. App. 652, 662, 949 A.2d 626, cert. denied, 289 Conn. 921, 958 A.2d 152 (2008); and this court previously has found the standards and comments helpful in resolving issues on appeal. Id., 663. We are persuaded that the standards of title correctly reflect the state of the law in Connecticut regarding the witnessing of deeds, and we agree that a deed may not be witnessed by a grantor or a grantee of the deed. Accordingly, the court’s decision granting summary judgment on count one in favor of the defendant as to the validity of the deed cannot stand.

Next, we turn to the validity of the power of attorney executed by Goryn in favor of the defendant. By its terms, the power of attorney is a statutory short form durable power of attorney executed in accordance with General Statutes §§ 1-42 et seq., and 45a-562. In addition to the required language set forth in § 1-43, the power of attorney specifies additional powers with regard to health care decisions. The power of attorney also includes the language provided for in § 45a-562 (a), which is necessary to create a durable power of attorney that will survive the later disability or incompetence of the principal.

In addition to providing the required content for a short form power of attorney, § 1-43 provides in relevant part: “The execution of this statutory short form power of attorney shall be duly acknowledged by the principal in the manner prescribed for the acknowledgment of a conveyance of real property. ...” Because the power of attorney at issue here is a durable power of attorney, we must also look to the requirements set forth in § 45a-562 (a), which provides that a durable power of attorney must be “executed and witnessed in the same manner as provided for deeds in section 47-5.” (Emphasis added.) Because a deed requires two attesting witnesses pursuant to § 47-5, a statutory short form durable power of attorney drafted to comport with both §§ 1-43 and 45a-562 must be both acknowledged and attested to by two witnesses.

The requirement that a durable power of attorney be witnessed in the same manner as a deed acknowledges that special protections are warranted to ensure that such important documents are not obtained through fraud or undue influence. This court having concluded that a grantor or a grantee of a deed cannot act as one of the two attesting witnesses required for the conveyance of property because allowing the parties to the deed to act as witnesses would negate the purpose of the witness requirement, it logically follows that the principal executing a power of attorney and his or her designated agent or attomey-in-fact must not act as one of the attesting witnesses to the power of attorney. As with the execution of a deed, if the parties to the power of attorney are permitted to act as attesting witnesses, any protection from fraud gained by requiring witnesses in the first instance effectively would be evaded.

In sum, because the defendant acted as one of the two witnesses necessary for the proper execution of the deed and the power of attorney he received from Goryn, neither document is valid as a matter of law, and the court improperly granted the defendant’s motion for summary judgment and denied the plaintiffs motion for summary judgment.

The judgment is reversed and the case is remanded with direction to deny the defendant’s cross motion for summary judgment, to grant summary judgment for the plaintiff on count one of the complaint as to the invalidity of the deed and power of attorney and for further proceedings according to law.

In this opinion the other judges concurred.

       The complaint also alleged counts against the defendants New Alliance Bank, Rockville Bank, Bank North N.A., Webster Bank, Bank of America and Hartford Hospital. The plaintiff withdrew the counts against the defendant banks. The count against Hartford Hospital, however, is still pending before the trial court. Because Hartford Hospital is not a party to this appeal, we refer to Mann as the defendant throughout this opinion.

       The denial of a motion for summary judgment is ordinarily not an appeal-able final judgment; however, if parties file cross motions for summary judgment and the court grants one and denies the other, this court has jurisdiction to consider both rulings on appeal. See Misiti, LLC v. Travelers Property Casualty Co. of America, 132 Conn. App. 629, 630 n.2, 33 A.3d 783 (2011). Additionally, because count one was the only count of the complaint brought against the defendant, the court’s disposition of that count constituted an appealable final judgment. See Practice Book § 61-3.

       According to the allegations in count seven of the complaint, which is still pending before the trial court, the defendant used his authority as the decedent’s health care agent to have the hospital remove the decedent from life support systems.

       We note that the complaint does not contain any allegations of undue influence or fraud on the part of the defendant in obtaining the deed or the power of attorney. There are also no allegations that the defendant breached his fiduciary duty or otherwise exceeded his authority under the power of attorney.

       The court also mistakenly stated that the plaintiff cited to the standards of title of the Connecticut Bar Association for the proposition that the required witnesses to a deed must be disinterested persons. The court rejected the argument without analysis merely stating that the standards are “advisory and are reflective of local custom and do not have the authority of law.” The plaintiff actually cited the standards for the proposition that a deed may never be witnessed by a grantor or a grantee, which argument this court will address later in this opinion.

       The land conveyance statute at that time was a predecessor statute to § 47-5 and similarly provided that the “ ‘subscribing of the name of the grantor shall be attested by two witnesses’ Winsted Savings Bank & Building Assn. v. Spencer, supra, 26 Conn. 199; which is essentially the same requirement set forth in § 47-5 (a) (4).

         We note in the present case that, in addition to giving the defendant a power of attorney over health care decisions, Goryn contemporaneously executed a document appointing the defendant as her health care representative in accordance with § 19a-576. The defendant signed the affidavit purporting to be one of the subscribing witnesses, although a different name is listed on the form as the witness. The validity of the document designating the defendant as Goryn’s health care representative is not currently before us.

       Unlike in Giannopolous, in which the legislature’s validating act cured any defect with the attesting witnesses; Giannopoulos v. Corbin, supra, 7 Conn. App. 603; the current validating act, codified at General Statutes § 47-36aa (a), does not save the present deed. Section 47-36aa (a) provides in relevant part: “Any deed . . . conveying . . . any interest in real property in this state recorded after January 1, 1997, which instrument contains any one or more of the following defects or omissions is as valid as if it had been executed without the defect or omission unless an action challenging the validity of that instrument is commenced and a notice of lis pendens is recorded in the land records of the town or towns where the instrument is recorded within two years after the instrument is recorded ... (2) The instrument is attested by one witness only or by no witnesses . . . .” Here, all parties agree that the plaintiff commenced this action and filed a notice of lis pendens within the specified time period, so the validating act is inapplicable.

       See footnote 7 of this opinion.

       Section 45a-562 (a) provides: “The subsequent disability or incompetence of a principal shall not revoke or terminate the authority of any person who acts under a power of attorney in a writing executed by the principal, if the writing contains the words ‘this power of attorney shall not be affected by the subsequent disability or incompetence of the principal,’ or words of similar import showing the intent of the principal that the authority conferred shall be exercisable notwithstanding the principal’s subsequent disability or incompetence; provided the power of attorney is executed and witnessed in the same manner as provided for deeds in section 47-5.”


text:
    JENNIE FINKLE, ADMINISTRATRIX (ESTATE OF BARBARA A. ECKERT) v. JOHN F. CARROLL III, ET AL.
    (AC 32725)
    DiPentima, C. J., and Bear and West, Js.

      Argued November 7, 2011 —
    officially released March 20, 2012

      Steven D. Ecker, with whom were M. Caitlin S. Anderson and Joel Faxon, for the appellant (plaintiff).

      Scott M. Karsten, for the appellees (defendants).
   Opinion

DiPENTIMA, C. J.

The plaintiff, Jennie Finkle, admin-istratrix of the estate of Barbara A. Eckert (decedent), appeals from the summary judgment rendered by the trial court in favor of the defendants, the town of Water-town (town) and John F. Carroll III, a police officer employed by the town. On appeal, the plaintiff argues that the court improperly concluded that her action, which was time barred by the applicable statute of limitations, could not be saved by General Statutes § 52-593. We affirm the judgment of the trial court.

The record reveals the following relevant undisputed facts and procedural history. This action arose out of the killing of the decedent by her former boyfriend, Mark Tannenbaum. On the evening of September 28, 2002, Tannenbaum was called by the decedent’s thirteen year old son, who told him that the decedent was not at home and that he needed relief from taking care of the decedent’s and Tannenbaum’s one year old child. When the decedent and a male individual drove up to the decedent’s home, Tannenbaum approached the vehicle and began punching the windows of the vehicle. The decedent and the male friend then drove to the town’s police department to file a complaint against Tannenbaum. While the decedent was speaking with Officer Christopher Marciano at the police department, her cell phone rang several times and Marciano heard a male voice yelling through the phone. The third time the decedent’s phone rang, Marciano answered it and Tannenbaum stated, “I’ll kill you.” Marciano identified himself as a police officer and asked Tannenbaum for his location. Tannenbaum told him he was at the decedent’s residence.

Three officers, including Marciano, traveled to the decedent’s residence and found Tannenbaum there. Marciano smelled alcohol on Tannenbaum’s breath at that time and found him angry. Tannenbaum told the police that he wanted the decedent arrested for leaving the children in the residence alone. Tannenbaum was arrested and taken to the police station where he was processed. Later that evening, Carroll made the decision to release Tannenbaum on a promise to appear. Subsequent to his release from police custody, on the morning of September 29, 2002, Tannenbaum shot and killed the decedent at her home in Watertown, and then at another location committed suicide.

On October 21, 2003, the plaintiff filed her initial action pursuant to General Statutes § 52-555 against the town and three police officers, Marciano, Officer David McDonnell and Sergeant David Bromley, alleging that they were negligent in charging Tannenbaum with one misdemeanor and releasing him from their custody without bond. On April 10, 2008, the plaintiff withdrew her initial action and commenced the present action on November 20, 2008, against the town and Carroll, pursuant to §§ 52-593 and 52-555. In her complaint, the plaintiff alleged that Carroll, the ranking officer at the time of Tannenbaum’s release from police custody, negligently exercised the duty of care he owed to the decedent by charging Tannenbaum improperly, releasing Tannenbaum without proper conditions and restrictions, and violating the town’s family violence policy, which requires protection for identifiable victims like the decedent. This negligence allegedly resulted in Tan-nenbaum’s killing of the decedent a short time after his release.

The defendants filed a motion to dismiss, asserting that the plaintiffs claims were barred by the statute of limitations found in § 52-555, and that the action was not saved by the provisions of § 52-593, the “wrong defendant” statute. The court denied the motion. The defendants then filed a motion for summary judgment arguing, among other things, that the plaintiffs claims were barred by the applicable statute of limitations. The plaintiff filed an objection to that motion. Thereafter, the court rendered summary judgment in favor of the defendants on the ground that the plaintiffs claims were not saved by § 52-593. In its memorandum of decision, the court stated that “[i]n the original action, the plaintiff failed to name the very party, the defendant Carroll, who was responsible for releasing Tannenbaum on September 29, 2002.” The court noted that “[t]he present case is not a situation where the plaintiff failed to name all of the potentially liable defendants.” Nevertheless, the court, citing Billerback v. Cerminara, 72 Conn. App. 302, 308-309, 805 A.2d 757 (2002), concluded that the plaintiffs “failure to obtain a judgment of dismissal in her original action is fatal to satisfying all of the criteria set forth in ... § 52-593.” This appeal followed.

Before addressing the plaintiffs claim, we set forth the applicable standard of review. “We exercise plenary review over a trial court’s decision to grant a motion for summary judgment. . . . Pursuant to Practice Book § 17-49, 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. ... A material fact is a fact which will make a difference in the result of the case.” (Internal quotation marks omitted.) Iello v. Weiner, 129 Conn. App. 359, 362-63, 20 A.3d 81 (2011).

The plaintiff claims that the court improperly concluded that her action, which was time barred by the applicable statute of limitations, could not be saved by § 52-593. The defendants argue, as an alternate ground for affirming the court’s judgment, that § 52-593 does not apply to the present action because the plaintiff did not fail to name a proper party in the original action. We agree with the defendants. Accordingly, although we reach the same conclusion as the trial court that the plaintiffs action could not be saved by § 52-593, we do so under different reasoning. See Florian v. Lenge, 91 Conn. App. 268, 281, 880 A.2d 985 (2005) (“[i]t is axiomatic that [w]e may affirm a proper result of the trial court for a different reason” [internal quotation marks omitted]).

We begin our analysis by examining the language of the statute. Section 52-593 provides in relevant part: “When a plaintiff in any civil action has failed to obtain judgment by reason of failure to name the right person as defendant therein, the plaintiff may bring a new action and the statute of limitations shall not be a bar thereto if service of process in the new action is made within one year after the termination of the original action. . . .” The savings provision therefore applies “if the plaintiff has failed to obtain judgment in the original action on the basis of her failure to name the right person as defendant . . . .” (Internal quotation marks omitted.) Cogan v. Chase Manhattan Auto Financial Corp., 276 Conn. 1, 8, 882 A.2d 597 (2005). Our Supreme Court has concluded that “the language of [§ 52-593] and its relationship to other statutes does not reveal a meaning that is plain and unambiguous. We therefore look for interpretive guidance beyond the statutory scheme.” Id., 8. Specifically, the court noted that “the statute is not clear as to whether the term right person means any right person or all right persons from whom the plaintiff can recover.” (Emphasis in original; internal quotation marks omitted.) Id., 8 n.6. “Under Connecticut law, a right person, as that term is used in § 52-593, is one who, as a matter of fact, is a proper defendant for the legal theory alleged. . . . Moreover, the plaintiffs failure to name all the defendants from whom she could have recovered in her original action does not constitute a failure to name the right person as defendant within the meaning of . . . § 52-593.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Iello v. Weiner, supra, 129 Conn. App. 363.

Our plenary review of the record leads us to conclude, notwithstanding the court’s conclusion to the contrary, that the present case is a situation in which the plaintiff named some, but not all, of the potentially liable defendants. In both actions, the plaintiff alleged the legal theory of negligence — specifically, negligence in charging Tannenbaum with a misdemeanor and releasing him on a promise to appear. In her initial action, the plaintiff alleged that “[d] espite the defendants’ collective knowledge and awareness” of, among other things, the threats of violence and abuse on the part of Tannenbaum against the decedent, the defendants “did nothing more than charge Tannenbaum with one misdemeanor and release him from their custody without bond.” In the present action, the plaintiff similarly alleged that Carroll was negligent in “failing to properly charge [Tannen-baum] . . . releasing [Tannenbaum] prematurely without proper conditions and restrictions, and . . . failing to protect the decedent. Moreover, [Carroll] violated the town’s family violence policy which requires protection for identifiable victims like the decedent.”

Although Carroll, as the ranking officer, made the final decision to release Tannenbaum, his decision was made ostensibly on the basis of information provided to him by Marciano, McDonnell and Bromley. It is undisputed that Marciano was the officer who, with backup from McDonnell and Bromley, arrested Tannenbaum and brought him to the police station. After Tannen-baum arrived at the police station, there was a shift change around 2 a.m., when Carroll arrived at the station and replaced Bromley as the ranking officer on duty. Further, the plaintiff does not dispute that Brom-ley and Marciano informed Carroll of the arrest and Bromley’s decision to charge Tannenbaum with only disorderly conduct. Although the original officers did not make the final decision to release Tannenbaum, it is undisputed that these specific officers played a role in the arrest and charging of Tannenbaum, which in turn led to Carroll’s decision to release Tannenbaum from police custody. Thus, we conclude that the original officers were proper defendants under the legal theory of negligence due to their involvement in the process that led to Tannenbaum’s release.

In reaching this conclusion, we note the instructive reasoning of this court in Iello. In Iello, the plaintiff commenced a dental malpractice action against Family Dental Group, P.C., and Kenneth Epstein, the plaintiffs former dentist. Iello v. Weiner, supra, 129 Conn. App. 361. The plaintiff then voluntarily withdrew the first action in its entirety and commenced a second action against Michael Weiner, also a dentist, on the basis of “negligence and related to the defendant’s postoperative treatment of the plaintiff following the same dental surgery referred to in the first action.” Id. It was undisputed that Epstein provided postoperative treatment to the plaintiff. Id., 363. Accordingly, the court concluded that Epstein was a “ ‘right person’ ” for the legal theory of negligence alleged and that § 52-693 did not save the plaintiff’s second action. Id., 364.

The court in Iello explained: “Although it may be the case that the plaintiffs failure to name the defendant as a defendant in the first action was a benign oversight, our law is clear that [t]he fact that the complaint in the plaintiffs original action failed to name all potentially hable defendants is immaterial. . . . [T]he fact that the specific allegations of negligence directed originally against [the defendant in the first action] were more appropriately pleaded against the defendant does not alter our resolution of the plaintiffs claim on appeal. Because the plaintiffs first action, premised on a theory of negligence, was brought against a right person, § 52-593 is inapplicable and cannot save the plaintiff’s second action from being time barred by [the applicable statute of limitations]. Accordingly, the plaintiffs claim fails.” (Citation omitted; emphasis added; internal quotation marks omitted.) Id., 363-64; see also Cogan v. Chase Manhattan Auto Financial Corp., supra, 276 Conn. 8-10 (action not saved where initial action named “ ‘right’ defendant”); Kronberg v. Peacock, 67 Conn. App. 668, 673-74, 789 A.2d 510 (same), cert. denied, 260 Conn. 902, 793 A.2d 1089 (2002); compare Whipple v. Fardig, 109 Conn. 460, 464-65, 146 A. 847 (1929) (defendant named as principal of person driving vehicle under theory of agency for purposes of savings statute deemed “wrong defendant” where evidence revealed defendant was not owner of vehicle involved in accident and thus could not be sued under theory alleged); DiPietro v. Farmington Sports Arena, LLC, 123 Conn. App. 583, 594-95, 2 A.3d 963 (second action fell within scope of § 52-593 where defendant named in first action “did not exist at the time of the injury and, therefore, could not have been in control or possession of the [facility where the plaintiff was injured]”), cert. granted on other grounds, 299 Conn. 920, 10 A.3d 1053 (2010); Morrissey v. Board of Education, 40 Conn. Sup. 266, 269, 491 A.2d 1126 (1985) (initial defendant named in negligence action deemed wrong defendant where, from inception of original action, second defendant’s actions, and his alone, were principal and underlying basis of plaintiff’s claim [emphasis added]).

Although we recognize that § 52-593, a remedial statute, is construed liberally, “it should not be construed so liberally as to render statutes of limitation virtually meaningless.” (Internal quotation marks omitted.) Isidro v. State, 62 Conn. App. 545, 551, 771 A.2d 257 (2001). As our Supreme Court stated in Cogan, “to allow a plaintiff to file successive complaints under § 52-593 naming different defendants, all of whom were proper, thereby permitting the plaintiff to take the proverbial second, third or even fourth bite of the apple, could lead to unrestrained filings in cases with multiple defendants and open the door to endless litigation. To allow [such an] action . . . would defeat the basic purpose of the public policy that is inherent in statutes of limitation[s], i.e., to promote finality in the litigation process.” (Emphasis added; internal quotation marks omitted.) Cogan v. Chase Manhattan Auto Financial Corp., supra, 276 Conn. 11. On the basis of our plenary review of the record, we conclude that there is no genuine issue of material fact that the police officers named in the initial action were proper defendants for the legal theory alleged, and, accordingly, the plaintiffs action was not saved by § 52-593.

The judgment is affirmed.

In this opinion the other judges concurred.

       The parties do not dispute that the plaintiffs action against the defendants is governed by the two year statute of limitations set forth in General Statutes § 52-555. Further, it is undisputed that if her action is not saved by § 52-593, it is time barred pursuant to § 52-555.

       General Statutes § 52-555 (a) provides: “In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date of death, and except that no such action may be brought more than five years from the date of the act or omission complained of.”

       The parties do not dispute that the present action was brought “within one year after the termination of the original action.” General Statutes § 52-593.

       We do not have in the record before us the town’s family violence policy referred to in the complaint, but its absence does not affect our review of the plaintiffs claim.

       The plaintiff also claims that the defendants’ alternate grounds for affirmance fail because they are either factually or legally incorrect, or present genuine issues of material fact that cannot be decided on summary judgment. We only address the alternate ground for affirmance that the plaintiff did not fail in the original action to name a proper party. Because we agree with the defendants’ assertion, we do not address the plaintiffs additional arguments.

       The court’s central holding was that the plaintiffs “failure to obtain a judgment of dismissal in her original action is fatal to satisfying all of the criteria set forth in ... § 52-593.” As in Iello, we are “mindful of the issues raised and briefed by the parties as to whether the voluntary withdrawal of an action brought initially against an incorrect defendant qualifies as the failure to obtain judgment for purposes of applying the savings provision of § 52-593.” Iello v. Weiner, supra, 129 Conn. App. 364 n.6.
      Specifically, we note that as a remedial statute, § 52-593 is construed liberally to encourage diligent plaintiffs who named the wrong defendant due to a “reasonable and honest mistake of fact as to the identity of the truly responsible individual” to reassert their claims. (Internal quotation marks omitted.) Kronberg v. Peacock, 67 Conn. App. 668, 672, 789 A.2d 510, cert. denied, 260 Conn. 902, 793 A.2d 1089 (2002). To the extent that this court has concluded that the voluntary withdrawal of an action technically does not qualify as a “failure to obtain judgment” for purposes of § 52-593; see Cogan v. Chase Manhattan Auto Financial Corp., 83 Conn. App. 843, 844-45, 851 A.2d 407 (2004), aff'd on other grounds, 276 Conn. 1, 882 A.2d 597 (2005); this conclusion may be an overly narrow one. Because we conclude that the original defendants were the “rightperson[s]” forpurposes of § 52-593, however, we do not address this issue.

       Although Marciano testified during his deposition that the decision to release Tannenbaum was between Carroll and Bromley, Bromley testified during his deposition that, to the contrary, the decision was Carroll’s alone. Even assuming that only Carroll made the final decision to release Tannen-baum, this does not make the original officers “wrong defendants,” as we explain in the main text of this opinion.

       The plaintiffs complaint in the present action alleged that Carroll, rather than Bromley, charged Tannenbaum with disorderly conduct Our review of the arrest report for Tannenbaum, however, which was submitted as an exhibit in support of the defendants’ motion for summary judgment, indicates that Marciano was the arresting officer and that Bromley signed off on Marciano’s decision to charge Tannenbaum with disorderly conduct. The plaintiff states that Carroll had the authority to “alter charges.” As we have explained, however, just because Carroll had such authority does not mean that the original officers were not themselves potentially liable defendants.

       The defendants also argue that the town was a proper defendant in the original action. Because we conclude that the original officers were proper defendants for the legal theory of negligence, we need not address this argument.

       The court noted that although the plaintiff had also named Family Dental Group, P.C., as a defendant in the second action, she only challenged the summary judgment rendered in favor of Michael Weiner on appeal. Iello v. Weiner, supra, 129 Conn. App. 360 n.1.