author: BISHOP, J. BERDON, J.,

text:
    STATE OF CONNECTICUT v. TRICIA LYNNE COCCOMO
    (AC 28819)
    Bishop, Gruendel and Berdon, Js.

      Argued January 15
    officially released June 30, 2009

      Robert S. Bello, with whom, on the brief, were Patrick D. McCabe, Lawrence M. Lapine and Thomas M. Cassone, for the appellant (defendant).

      Robin S. Schwartz, assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, Joseph C. Valdes, assistant state’s attorney, and Dina Urso, deputy assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Tricia Lynne Coccomo, appeals from the judgment of conviction, rendered after a jury trial, of three counts of manslaughter in the second degree with a motor vehicle in violation of General Statutes § 53a-56b (a), three counts of misconduct with a motor vehicle in violation of General Statutes § 53a-57 and one count of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a (a) (2). On appeal, the defendant claims that (1) the trial court improperly admitted evidence of her blood alcohol content, (2) there was insufficient evidence to sustain her conviction and (3) the court improperly admitted consciousness of guilt evidence. We agree with the defendant’s third claim and, accordingly, reverse the judgment of the trial court.

The following evidence was adduced at trial and is relevant to the resolution of the defendant’s claims on appeal. At approximately 7 p.m. on July 26, 2005, the defendant attended a work-related dinner at a colleague’s home where jambalaya and sangria were served. The hostess explained that she served two pitchers of sangria to her eight guests, each pitcher containing no more than a magnum of wine. One pitcher had white wine, the other red. Both were mixed with fruit, honey and sparkling water. There was no other alcohol served at the party. At the end of the dinner party, the pitcher of red sangria appeared untouched and the pitcher of white sangria was three-quarters consumed. The defendant testified that she drank between one and two glasses of sangria during dinner. The other guests testified that they, too, consumed some of the sangria. There was no evidence that the defendant consumed any other alcohol before or after dinner. All of the people at the dinner testified that the defendant did not display any signs of intoxication and that she seemed normal throughout the dinner party.

Sometime between 9 p.m. and 9:30 p.m., the defendant left the dinner to go home. At approximately 9:28 p.m., the defendant, who was driving northbound at approximately forty-five miles per hour, the posted speed limit, around a curve on Long Ridge Road in Stamford, collided with another vehicle traveling southbound at approximately the same speed. The defendant’s vehicle was three feet over the center line of the roadway at the time of the collision. The three occupants of the other vehicle died from the injuries that they sustained as a result of the collision. The defendant sustained a broken ankle and minor lacerations.

Officer Frank Laccona of the Stamford police department was one of the first police officers on the scene. He helped the defendant out of her vehicle. Shortly thereafter, technicians from Stamford Emergency Medical Services, Inc. (emergency medical services), arrived. Robert Voss of the emergency medical services testified that the defendant was stable and ambulatory and that she was alert and oriented. Jennifer Mardi, also of the emergency medical services, testified that the defendant had the odor of alcohol on her breath. She asked the defendant if she was okay and if she had been drinking. In response, the defendant stated that she had had a few drinks. After checking the defendant’s vital signs, Mardi transferred her care to paramedic Kirsten Engstrand who, along with fellow emergency medical technician, Yannick Passemart, accompanied the defendant to Stamford Hospital. Engstrand testified that although she did not write it in her report, the defendant did have the odor of alcohol on her breath. Engstrand stated that the defendant was conscious, alert, oriented and ambulatory. Passemart also testified that he detected a slight odor of alcohol on the defendant. Both Engstrand and Passemart indicated that the defendant’s speech was slightly slurred, but Engstrand acknowledged that such slurring was consistent with having just been in a serious accident and with having been upset and crying.

The defendant’s blood was drawn in the ambulance on the way to the hospital. Although the emergency medical technicians’ report indicates that the defendant’s blood was drawn by Passemart, who was not legally qualified to do so, the testimony at trial was that her blood was drawn by Engstrand. Engstrand indicated that she had a distinct recollection of her treatment of the defendant due to the serious nature of the collision. Engstrand testified that she used five tubes to collect the defendant’s blood, one 10 milliliter tube with a pink top, and four 5 milliliter tubes: one with a blue top, one green, one lavender and one yellow. Engstrand testified that she never used tubes of any other description and that she did not have access to any other tubes. After she filled the tubes, she placed them in a biohazard bag, rolled the bag up and taped it to the defendant’s intravenous bag. Engstrand did not label the tubes as containing the defendant’s blood, as it was not procedure to do so, nor did she label the biohazard bag.

The ambulance arrived at Stamford Hospital between 10:10 and 10:18 p.m. Engstrand indicated that upon arrival at the hospital, she placed the intravenous bag and the biohazard bag containing the tubes of the defendant’s blood on or between the defendant’s legs. The defendant was met at the hospital by Officer Robert Bulman of the Stamford police department, who asked her a series of questions. Bulman indicated that he had no problem understanding the defendant’s responses and that her speech was not slurred. Bulman testified that in his experience, intoxicated individuals are unable to answer the questions he posed to the defendant. Bulman did, however, note an odor of alcohol on the defendant’s breath.

Emergency room nurse Toren Utke assumed the defendant’s care from Engstrand. Utke testified that the defendant appeared alert and oriented, and was not confused or slurring her words and that he never smelled the odor of alcohol on her breath. He indicated that the defendant attained a perfect score on the Glasgow coma scale. Utke testified that Engstrand identified a biohazard bag of blood as the defendant’s and that he left the blood with the defendant while he printed labels for the tubes. Utke indicated that he individually labeled the tubes of blood, placed them back in the biohazard bag and sent them to the laboratory.

Utke and other emergency room staff testified that the emergency room was very hectic and “crazy” that night due to the trauma patients from the defendant’s collision. The hospital records indicate that the blood sample attributed to the defendant was one of three blood samples collected in the emergency room at precisely 10:30 p.m. The laboratory staff printed and affixed new labels to each tube, placing the new label over the old one. The laboratory director, William Wilson, explained that this procedure of labeling and then relabeling the tubes was later changed in October, 2005, due, in part, to the risk of error inherent in relabeling. Under the new system, the laboratory does not relabel the tubes. Rather, the tubes retain their original labels for their life use.

Wilson also produced documents that he referred to as an “audit trail,” consisting of a series of screenshots from the laboratoiy’s computers revealing certain information about the blood tubes tested by the laboratory. The documents indicate that the laboratory labeled and tested blood that was collected from the defendant at 10:30 p.m. in the emergency room and deposited in a 10 milliliter “red-gray top” tube. Despite the contents of the “audit trail” documents, the evidence at trial revealed, unequivocally, that the defendant’s blood was drawn in the ambulance, and not at the hospital, and that she arrived at the hospital at 10:15 p.m. The evidence is also clear that when the blood was taken from the defendant in the ambulance, none of it was deposited into a tube with a “red-gray top.” The blood in the red-gray tube, which was attributed to the defendant, reportedly contained a blood alcohol content of 0.241. Those results were admitted into evidence over the defendant’s objection.

Both toxicologists, Robert Powers for the state and Richard Stripp for the defendant, testified as to the probable effect a 0.241 blood alcohol content would have on an individual. Both toxicologists testified that a reading of 0.241 at 9:52 p.m. would equate to a reading of roughly 0.25 at 9:28 p.m., the time of the accident, assuming no further alcohol was ingested. Powers opined that to produce such a reading, the defendant would have had to have consumed ten or eleven servings of alcohol in one hour, and Stripp indicated that the defendant would have had to have consumed three-quarters of a pitcher of sangría to reach that level. Powers stated that such a high level of intoxication would result in cognitive impairment noticeable to others. Powers expressed that if his blood alcohol content were that high, he probably would not “be sitting up.” Stripp opined that a blood alcohol content of 0.241 or 0.25 would render an average person overtly intoxicated, staggering, demonstrating motor impairment, cognitive dysfunction and slurring words, and that a blood alcohol content of 0.25 is “sloppy drunk.”

James Samelle, the trauma surgeon who cared for the defendant, testified that he did not observe any signs of intoxication in the defendant. He indicated that she was not slurring her words, she was alert and that she had no problems in communicating with him and that he did not detect the odor of alcohol on her breath. Samelle stated that if he had observed any signs of intoxication in the defendant, he would have noted them in his report. He opined that an intoxicated individual would not score a perfect fifteen on the Glasgow coma scale, which the defendant did three times that evening.

The defendant was arrested and charged with three counts of manslaughter in the second degree in violation of General Statutes § 53a-56 (a) (1), three counts of manslaughter in the second degree with a motor vehicle in violation of § 53a-56b (a), three counts of misconduct with a motor vehicle in violation of General Statutes § 53a-57 (a), one count of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of § 14-227a (a) (2), one count of failure to keep a narcotic drug in the original container in violation of General Statutes § 21a-257 and one count of possession of less than four ounces of marijuana in violation of General Statutes § 21a-279 (c). She was convicted of three counts of manslaughter in the second degree with a motor vehicle, three counts of misconduct with a motor vehicle and one count of operating a motor vehicle while under the influence of intoxicating liquor or drugs, and was acquitted of the remaining charges. The defendant was sentenced to a total effective term of twenty years incarceration, execution suspended after twelve years, followed by five years of probation and a $1000 fine. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly admitted evidence of her blood alcohol content. Because the defendant’s claim is buttressed by an argument not made before the trial court, it is unavailable for our review.

The following additional procedural history is relevant to the defendant’s claim. On January 25, 2007, the third day of the trial in this matter, the defendant filed a motion to preclude the blood alcohol content report. Although the defendant sought a Porter hearing in her motion, the motion was not a challenge to scientific methodology but, rather, a challenge to the chain of custody of her blood sample. In attacking the chain of custody, the defendant cited to the uncertainty of the identity of the individual who drew her blood, the confusion of whether the blood was drawn in the ambulance or at the hospital and at what time, and potential errors in the tube labeling system and computer problems related to emergency medical services’ reports, called “run sheets.” The court denied the defendant’s motion, concluding that the chain of custody was “sufficient to allow the jury to consider the test results.”

On appeal, the defendant contends that the chain of custody was not established because the laboratory “tested and attributed to [the defendant] a 10 milliliter red-gray topped tube of blood when the testimony and evidence unequivocally established that [her] blood was in a yellow-gold tube less than 5 milliliters.” Indeed, the evidence adduced at trial does not explain this discrepancy. There was no explanation offered as to when, how, or by whom, if at all, the defendant’s blood was transferred from one of the five tubes into which it was originally deposited, into a tube with the red-gray top. Although the defendant challenged the chain of custody at trial, she made no claim, however, then regarding the discrepancy about the different colored tubes. Indeed, the evidence regarding the different colored tubes had not yet been presented when the defendant challenged the chain of custody. Later at trial, when the evidence regarding the discrepancy between the tubes was admitted, the defendant did not renew her objection on the basis of this newly evinced discrepancy, nor did she ask the court to reconsider its ruling regarding the admission of the blood alcohol content report. In short, the defendant did not, at any time before the trial court, challenge the admission of the report on the ground of a discrepancy in the color of the caps of the tubes purportedly containing her blood.

Our Supreme Court has stated: “[T]he standard for the preservation of a claim alleging an improper evidentiary ruling at trial is well settled. This court is not bound to consider claims of law not made at the trial. ... In order to preserve an evidentiary ruling for review, trial counsel must object properly. ... In objecting to evidence, counsel must properly articulate the basis of the objection so as to apprise the trial court of the precise nature of the objection and its real purpose, in order to form an adequate basis for a reviewable ruling. . . . Once counsel states the authority and ground of [the] objection, any appeal will be limited to the ground asserted. . . .

“These requirements are not simply formalities. They serve to alert the trial court to potential error while there is still time for the court to act. . . . Assigning error to a court’s evidentiary rulings on the basis of objections never raised at trial unfairly subjects the court and the opposing party to trial by ambush.” (Internal quotation marks omitted.) State v. Simpson, 286 Conn. 634, 645, 945 A.2d 449 (2008).

Because the defendant’s present claim regarding the discrepancy in the color of the test tube caps was not raised at trial, it is not available for review on appeal. Because the chain of custody claims made at trial before the discovery of the discrepancy in tube cap colors have not been asserted on appeal, they are similarly unavailable for our review.

II

The defendant next claims that there was insufficient evidence to sustain her conviction. The defendant’s sufficiency claims are largely dependent on her claim that the blood alcohol content report was admitted into evidence improperly, which we have already addressed. Because the blood alcohol content report was admitted into evidence and the jury was entitled to consider it, the defendant’s sufficiency claims must fail.

“In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Na’im B., 288 Conn. 290, 295-96, 952 A.2d 755 (2008). “This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.” (Internal quotation marks omitted.) State v. Ali, 92 Conn. App. 427,437, 886 A.2d 449 (2005), cert. denied, 277 Conn. 909, 894 A.2d 990 (2006). “[T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Batista, 101 Conn. App. 623, 626,922 A.2d 1116, cert. denied, 284 Conn. 918, 933 A.2d 721 (2007).

“[F]or the purposes of sufficiency review ... we review the sufficiency of the evidence as the case was tried; in other words, we review the evidence in its improperly restricted state, impropriety notwithstanding. Claims of evidentiary insufficiency in criminal cases are always addressed independently of claims of evidentiary error. ... [A] claim of insufficiency of the evidence must be tested by reviewing no less than, and no more than, the evidence introduced at trial.” (Citations omitted; internal quotation marks omitted.) State v. Smith, 73 Conn. App. 173, 179-80, 807 A.2d 500, cert. denied, 262 Conn. 923, 812 A.2d 865 (2002).

We do not disagree with the defendant that the blood alcohol content results were a linchpin in the state’s case. Those results, however, were before the jury for its consideration. Although there was testimony from many witnesses that the defendant did not appear intoxicated, that she was alert and oriented, and did not have enough to drink to substantiate a blood alcohol content of 0.241, the jury was free to weigh all of the evidence presented, including the blood alcohol content results. The jury was entitled to credit the blood alcohol content report as evidence of the defendant’s intoxication despite the strong evidence suggesting a disconnect between the blood alcohol content results and the defendant’s behavior during the night in question. Accordingly, there was evidence in the record from which the jury reasonably could have concluded as it did.

Ill

The defendant finally claims that the court improperly admitted evidence concerning her request at the hospital for her blood alcohol content test results and evidence concerning her transfer of real property because that evidence was irrelevant to consciousness of guilt and was unduly prejudicial. We agree.

At trial, the state offered three documents on the basis that, taken together, they reflected the defendant’s consciousness of guilt. The first document was an excerpt from the defendant’s medical records documenting the fact that a printout of her blood alcohol content test results was given to her, at her request, on July 29, 2005, prior to her discharge from the hospital. The second document was a certified copy of a quitclaim deed that revealed that the defendant transferred her ownership interest in her Stamford home to her mother on August 5, 2005, approximately one week after her discharge from the hospital, for “$1.00 . . . and other value being less than $100.00.” The final document was a certified copy of a city of Stamford tax card, describing the property that the defendant had transferred to her mother and ascribing to it an appraised value of more than $500,000. In support of its offer of these documents, the state argued that the defendant’s request for a copy of her blood alcohol content results could be deemed an “implied admission” and was relevant as consciousness of guilt. The state further contended that the quitclaim deed and the tax card showed that the defendant had transferred her interest in her home to her mother in bad faith for a price far below its value because she knew that she was guilty of driving while intoxicated and consequently killing three people. The defendant objected to the evidence as irrelevant and prejudicial. The court admitted the documents with the limitation that the defendant’s request for her blood alcohol content results could be used only as “evidence on the question of the defendant’s knowledge” of her blood alcohol content and how, if at all, her knowledge related to the property transfer.

We review evidentiary claims under the abuse of discretion standard. “Unless an evidentiary ruling involves a clear misconception of the law, [t]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . [The reviewing court] will make every reasonable presumption in favor of upholding the trial court’s ruling . . . .” (Internal quotation marks omitted.) State v. Smith, 275 Conn. 205, 219, 881 A.2d 160 (2005).

“Section 4-3 of the Connecticut Code of Evidence provides that [Relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice or surprise, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. ... In a criminal trial, it is relevant to show the conduct of an accused, as well as any statement made by him subsequent to the alleged criminal act, which may fairly be inferred to have been influenced by the criminal act. . . . The state of mind which is characterized as guilty consciousness or consciousness of guilt is strong evidence that the person is indeed guilty . . . and, under proper safeguards ... is admissible evidence against an accused.” (Citations omitted; internal quotation marks omitted.) State v. Camacho, 92 Conn. App. 271, 294, 884 A.2d 1038 (2005), cert. denied, 276 Conn. 935, 891 A.2d 1 (2006).

“Our Supreme Court has . . . made clear that . . . consciousness of guilt [evidence] goes to the question of the defendant’s state of mind, a determination which in turn requires an assessment of the defendant’s motivations . . . .” (Internal quotation marks omitted.) State v. Davis, 98 Conn. App. 608, 628, 911 A.2d 753 (2006), aff'd, 286 Conn. 17, 942 A.2d 373 (2008). “Atrial court may admit [e]vidence that an accused has taken some kind of evasive action to avoid detection for a crime, such as flight, concealment of evidence, or a false statement, [which] is ordinarily the basis for a charge on the inference of consciousness of guilt. . . . The trial court, however, should admit only that evidence where its probative value outweighs its prejudicial effect.” (Internal quotation marks omitted.) State v. Riser, 70 Conn. App. 543, 547-48,800 A.2d 564 (2002). “[Mjisstatements of an accused, which a jury could reasonably conclude were made in an attempt to avoid detection of a crime or responsibility for a crime or were influenced by the commission of the criminal act, are admissible as evidence reflecting a consciousness of guilt.” (Internal quotation marks omitted.) State v. Moody, 214 Conn. 616, 626, 573 A.2d 716 (1990); see also State v. Riser, supra, 548 (assumption of false name and address constitutes consciousness of guilt evidence).

In admitting the consciousness of guilt evidence in this case, the court relied heavily on Batick v. Seymour, 186 Conn. 632,443 A.2d 471 (1982). In Batick, the defendant conveyed his interest in real property to his wife, for “love and affection,” less than three months after he was involved in a motor vehicle collision. Id., 637. The defendant was aware that the other party involved was paralyzed as a result of the collision and indicated that his automobile insurance policy was limited to $25,000 and that he had consulted an attorney about the transfer. The plaintiff sought to introduce evidence of the property transfer to establish the defendant’s consciousness of liability. Our Supreme Court concluded that the trial court should have admitted the evidence, stating: “Under these circumstances we are not persuaded that the likelihood of prejudice was so great as to warrant a deviation from the general rule admitting evidence of post-accident transfers to show that the defendant did not view his position in the possible forthcoming litigation as entirely impregnable. The evidence was neither so remote nor so prejudicial that its significance upon the issues of the case could not be entrusted to the jury.” Id., 638.

Batick, however, was a civil case involving potential civil liability. The state has not offered, and we have not found, any decisional law in support of its contention that a transfer of assets after an automobile accident is probative of consciousness of guilt of the commission of a crime. The mere fact that one may be subject to suit in a civil matter premised on negligence does not necessarily evince a consciousness of criminal culpability. We find the present case more analogous to United States v. Ferguson, United States District Court, Docket No. 3:06CR137 (CFD), 2007 U.S. Dist. LEXIS 87842 (D. Conn. November 30, 2007). In Ferguson, the defendant was facing both criminal charges and civil litigation as a result of fraudulent filings with the Securities and Exchange Commission. In the criminal matter, the government sought to introduce evidence of the defendant’s property transfers as consciousness of guilt. The court concluded that although the evidence of the defendant’s property transfers may have been probative of his state of mind at the time, the speculation surrounding the motivation of the transfers rendered the evidence more prejudicial than probative. Id., *11-12.

Here, the defendant explained that she transferred the interest in her home to her mother because, throughout her marriage, her husband had borrowed approximately $250,000 from her mother and that because she was planning to divorce her husband, she was transferring this asset in an attempt to ensure that her mother would get her money back. The defendant testified that she had started to prepare the paperwork for the transfer of her assets two weeks prior to the accident. Although the defendant’s act of transferring her interest in her home could have been viewed as an attempt to protect that asset in the case of civil litigation arising from the collision, as in Ferguson, the motivation for the transfer was speculative.

The evidence admitted was likely to lead the jury to believe that the defendant transferred her property in an attempt to evade any responsibility she may have had in the accident. Because there were three fatalities resulting from the collision in this case, evidence of such an effort by the defendant to protect her assets was likely to inflame the jury and distract it from the issues at hand. On this basis, we conclude that the consciousness of guilt evidence was more prejudicial than probative and, therefore, was admitted improperly.

“When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful. ... [A] nonconstitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict. . . . [0]ur determination that the defendant was harmed by the trial court’s [evidentiary rulings] is guided by the various factors that we have articulated as relevant [to] the inquiry of evidentiary harmlessness . . . such as the importance of the [evidence] in the prosecution’s case, whether the [evidence] was cumulative, the presence or absence of evidence corroborating or contradicting the [evidence] on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case. . . . Most importantly, we must examine the impact of the evidence on the trier of fact and the result of the trial.” (Citation omitted; internal quotation marks omitted.) State v. Thomas, 110 Conn. App. 708, 718-19, 955 A.2d 1222, cert. denied, 289 Conn. 952, 961 A.2d 418 (2008).

Here, the state’s case was not very strong and relied almost entirely on the admission of a blood alcohol content report. The level of intoxication implied by this report was in stark contrast with the anecdotal evidence of the defendant’s behavior during the dinner party, at the accident scene and at the hospital, and with forensic evidence of the likely effects such a reading would have on an individual’s bearing and behavior. The fact that the defendant sought her blood alcohol content results from the hospital and transferred real estate to her mother without consideration was not crucial to the state’s case, nor was it cumulative of any other evidence of the defendant’s state of mind or consciousness of guilt. Because this was a close case in which the evidence of intoxication rested heavily on questionable blood alcohol content results that were at variance with much of the testimonial evidence, the admission of the prejudicial evidence of the defendant’s transfer of assets likely tipped the scale in favor of the state. Accordingly, we cannot be assured that the admission of this evidence did not substantially affect the verdict. On this basis, we conclude that the admission of the evidence was both improper and harmful.

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

In this opinion GRUENDEL, J., concurred.

BERDON, J.,

concurring in part and dissenting in part. I agree with part III of the majority opinion that the trial court improperly admitted the alleged consciousness of guilt evidence. The request at the hospital by the defendant, Trida Lynne Coccomo, for the results of her blood alcohol content test and evidence concerning her transfer of real property subsequent to the automobile collision at issue should not have been admitted into evidence because, under the circumstances of this case, that evidence was irrelevant and unduly prejudicial.

I write separately because in my opinion there is insufficient evidence and indeed no admissible evidence to sustain a conviction under General Statutes §§ 14-227a (a) (2), 53a-56b (a) and 53a-57, all of which were predicated on the claim that the defendant had a blood alcohol content of 0.241. It is absolutely clear that the blood tested was not that of the defendant and that the only evidence that she was intoxicated was the tested blood sample. A blood alcohol content of 0.241 is a level of alcohol intoxication equivalent to a “fall down drunk,” or, as described by Robert Powers, the state’s toxicologist, as “sloppy drunk.” The evidence of consumption of alcohol by the defendant was insufficient to support a conviction of driving under the influence of alcohol.

The majority refuses to reverse the conviction on this ground because the trial attorney representing the defendant challenged the admission of the blood samples only on the ground of the chain of custody and not because of the discrepancy that the blood collected from the defendant was in a test tube completely different from that of the blood tested, which produced a blood alcohol content of 0.241. “The state’s burden with respect to chain of custody is met by showing that there is a reasonable probability that the substance has not been changed in important respects.” (Internal quotation marks omitted.) State v. Estrada, 71 Conn. App. 344, 353, 802 A.2d 873, cert. denied, 261 Conn. 934, 806 A.2d 1068 (2002). In this case, I would conclude that the defendant’s chain of custody objection preserved her argument that her blood was not the blood that was tested. Furthermore, the court’s failure to exclude blood evidence that clearly was not the defendant’s blood constituted plain error within the meaning of Practice Book § 60-5, which provides in relevant part that a reviewing court “may in the interests of justice notice plain error not brought to the attention of the trial court. ...” (Emphasis added.) See State v. Preyer, 198 Conn. 190, 199, 502 A.2d 858 (1985) (reversing conviction on basis of nonpreserved error because “interest of justice” required it).

Although we reverse the judgment on the grounds of the inadmissibility of evidence, which was irrelevant to consciousness of guilt, a reversal also based on the erroneous admissibility of the blood alcohol content tests would put to rest the possibility of a retrial of this second grade schoolteacher who has unjustly lived with this nightmare for more than five years.

Accordingly, I respectfully concur in part and dissent in part.

       The Glasgow coma scale assesses brain function on the basis of how a patient responds to certain stimuli by opening the eyes and giving verbal and motor responses.

       The hospital records are inaccurate in that the defendant’s blood was drawn in the ambulance, not at the hospital, and, because the defendant arrived at the hospital at 10:15 p.m., her blood had to have been drawn prior to that time.

       The defendant had previously filed a motion to suppress any and all of the blood evidence on the basis that it had been seized in violation of the fourth amendment due to the fact that the warrant permitted the seizure of the evidence for any blood drawn from the defendant following her admission to Stamford Hospital, and the defendant’s blood was drawn in the ambulance, before she arrived at or was admitted to the hospital. The court denied the motion to suppress, and the defendant has not challenged that ruling.

         State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) (en banc), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998).

       The dissent suggests that this court should conclude that the admission of the blood alcohol content results constituted plain error. The defendant, however, has not sought plain error review. See Practice Book § 60-5. As we repeatedly have stated, “Connecticut law is clear that a party seeking review of unpreserved claims under either the plain error doctrine ... or State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), must affirmatively request such review.” (Citation omitted.) State v. Wheatland, 93 Conn. App. 232, 243-44, 888 A.2d 1098, cert. denied, 277 Conn. 919, 895 A.2d 793 (2006); see also Johnson v. Commissioner of Correction, 288 Conn. 53, 60, 951 A.2d 520 (2008); State v. Ramos, 261 Conn. 156,171, 801 A.2d 788 (2002).

       The defendant claims that even if the blood alcohol content report was admitted properly, the evidence was still insufficient because the state failed to prove that the blood tested belonged to her. We construe this argument as merely a reformulation of the evidentiary claim she failed to preserve, as set forth in part I. In other words, this argument is essentially the same as the defendant’s chain of custody argument, but cast in the light of a sufficiency claim to avoid the consequences of not having preserved it at trial. Because the blood alcohol content report was admitted as evidence, it was available for the jury’s consideration.

       The court ruled that “the state will not be permitted to argue to the jury . . . that simply asking for the laboratory results ... is consciousness of guilt because I think that argument strays into a question of speculation.” The court did, however, allow the state to argue that the defendant’s knowledge of her blood alcohol content results, as a result of her request for them, may have influenced the transfer of her assets, thereby evincing a consciousness of guilt.

       The majority correctly points out that the plain error doctrine was not raised by the defendant in her brief before this court. The doctrine, however, was unwittingly raised by the state when it argued in its brief before this court the following: “Reversal under plain error is equally unwarranted. Where the defendant, herself, did not even argue to the jury during her closing argument that the evidentiary discrepancy arising from the test tube evidence raised a reasonable doubt about the reliability of the blood alcohol content results, it can hardly be argued that the error was so obvious, clear and harmful as to warrant a reversal of her conviction.”

       See the majority opinion for the testimony of witnesses, both lay and professional, with respect to the defendant’s appearance with respect to her sobriety.


source: Caselaw Access Project

author: ROBINSON, J. LAVINE, J.,

license: Public Domain

text:
    JOHN D. WATTS v. HEATHER CHITTENDEN
    (AC 29626)
    Lavine, Robinson and Lavery, Js.

      Argued January 22
    officially released June 30, 2009

      Michael S. Hillis, for the appellant (defendant).

      James F. Sullivan, for the appellee (plaintiff).
   Opinion

ROBINSON, J.

The defendant, Heather Chittenden, appeals from the judgment of the trial court in favor of the plaintiff, John D. Watts, on his claim of intentional infliction of emotional distress. On appeal, the defendant claims that the court improperly (1) found that she failed to prove a statute of limitations defense, (2) found that she failed to prove her privilege defense and (3) awarded lost wages to the plaintiff. We agree with the defendant’s first claim and reverse the judgment of the trial court.

The following facts, as found by the court, and procedural history are relevant to our resolution of the defendant’s appeal. The plaintiff and the defendant axe former husband and wife. They were married in July, 1993; however, the defendant filed a dissolution of marriage action in the Superior Court in March, 1999. During the course of the marriage, the parties had two daughters, bom in 1995 and 1996. Following the dissolution, the defendant was granted joint custody and visitation rights. Several days before the dissolution action was filed, the defendant transferred her children to a new pediatrician. Specifically, the children saw Janet Murphy, a nurse practitioner, whom the defendant, also a nurse practitioner, had met while a student in a class taught by Murphy on the subject of sexual molestation of children.

At approximately 10:30 p.m. on June 3, 1999, the defendant called the department of children and families (department) to report that her eldest daughter had been abused sexually by the plaintiff. These allegations were then relayed by the department to the state police. The same report was also made by the defendant to Dawn Torres, a pediatrician. Thereafter, on June 10, 1999, the defendant met with Detective Anthony Buglione and Detective James McGlynn of the state police and reiterated her report that her daughter had been abused sexually by the plaintiff. She gave a five page written statement to the police providing details of her claims. Following this report, the state police contacted the plaintiff and requested pubic hair samples to be used in connection with the criminal investigation. On July 1,1999, the investigation concluded in the absence of any evidence to suggest that the plaintiff was abusing his daughter.

On July 21, 1999, McGlynn received another report from the department, which was based on new allegations made by the defendant regarding the plaintiffs abuse of their eldest daughter. On August 19, 1999, the defendant told McGlynn that the plaintiff continued to abuse their daughter, and, as a result, the investigation was reopened. During the course of the investigation, the daughter was evaluated by the Yale Child Sexual Abuse Clinic at Yale-New Haven Hospital (clinic). The clinic reported that the daughter indicated repeatedly during interviews that the plaintiff had not abused her. She did relate, however, that the defendant had been touching her vaginal area and saying, “this is what daddy does.” The investigation stemming from this complaint was closed on January 11, 2000.

Shortly thereafter, on January 19, 2000, the department received a report from Livia Orsis-Abdo, a physician in Southport, who stated that she had been told by the parties’ youngest daughter that the plaintiff had abused her sexually. As a result, the investigation against the plaintiff was reopened once again. The police eventually concluded that there was no evidence to support the allegations against the plaintiff but that there was substantial evidence that the defendant had sexually abused her two daughters while telling them that it “was what daddy [did].”

As a result of the investigation, the defendant was arrested and charged in a substitute information with two counts of risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21 (1) and (2), false reporting of an incident in violation of General Statutes (Rev. to 1999) § 53a-180 (a) (3) (A), false statement in the second degree in violation of General Statutes § 53a-157b, attempt to commit malicious prosecution in violation of General Statutes §§ 53a-49 (a) (2) and 53-39, and sexual assault in the fourth degree in violation of General Statutes (Rev. to 1999) § 53a-73a (a) (1). On April 11, 2002, the defendant pleaded guilty, as a part of a plea agreement, to falsely reporting an incident and attempt to commit malicious prosecution. In the statement of facts read into the record by the prosecutor, the defendant acknowledged that the allegations of sexual abuse asserted against the plaintiff were false and that the defendant made the false reports in an effort to have the plaintiff arrested. On May 30, 2002, the defendant was sentenced to a term of one year incarceration, execution suspended, and three years probation on each count.

Following her guilty plea on April 11, 2002, the defendant made repeated accusations to family therapists regarding the plaintiffs continuing sexual abuse of his daughters. Specifically, in 2004, she told Nina Rossamondo, a family therapist, that the plaintiff had abused sexually one or more of his children. In May, 2006, she also told Peter Kossef, a family therapist, that the plaintiff had molested the eldest daughter at least once.

On August 29, 2005, the plaintiff filed a one count complaint sounding in intentional infliction of emotional distress. The defendant filed an answer on October 20, 2005, in which she asserted as a special defense that the action was time barred under the statute of limitations. The plaintiff filed a reply, denying this special defense on May 22, 2006. On June 11, 2007, the plaintiff sought, and was granted, request for leave to amend his complaint to conform the pleadings to the proof by asserting the specific manner in which the defendant’s tortious conduct continued to 2006. Subsequently, the defendant amended her special defenses on September 20, 2007, to assert that the statements she made were privileged and that the claims were barred by the statute of limitations. The plaintiff filed a general denial to the defendant’s amended special defenses on October 31, 2007.

A trial before the court was conducted on May 1 and 2, June 11 and September 20, 2007. The court found in favor of the plaintiff on January 25, 2008, and the defendant then filed the present appeal on February 13, 2008. Additional facts will be set forth as necessary.

I

The defendant first argues that the court improperly concluded that the plaintiffs claim was not time barred. Specifically, she maintains that the plaintiff did not submit any evidence of actionable conduct within the period of time prescribed to bring a claim for intentional infliction of emotional distress. Additionally, the defendant argues that the continuing course of conduct doctrine does not serve to toll the applicable statute of limitations because it was not pleaded properly in avoidance and does not have a place in the factual context of this case.

We begin our analysis by setting forth the relevant standard of review and legal principles. “The question of whether a party’s claim is barred by the statute of limitations is a question of law, which this court reviews de novo.” Giulietti v. Giulietti, 65 Conn. App. 813, 833, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001). Here, the plaintiffs claim is governed by the tort statute of limitations set forth in General Statutes § 52-577. “Section 52-577 is a statute of repose in that it sets a fixed limit after which the tortfeasor will not be held liable and in some cases will serve to bar an action before it accrues. . . . General Statutes § 52-577 provides: No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of. This court has determined that [§] 52-577 is an occurrence statute, meaning that the time period within which a plaintiff must commence an action begins to run at the moment the act or omission complained of occurs. . . . Moreover, our Supreme Court has stated that [i]n construing our general tort statute of limitations, General Statutes § 52-577, which allows an action to be brought within three years from the date of the act or omission complained of . . . the history of th[e] legislative choice of language precludes any construction thereof delaying the start of the limitation period until the cause of action has accrued or the injury has occurred. . . . The three year limitation period of § 52-577, therefore, begins with the date of the act or omission complained of, not the date when the plaintiff first discovers an injury.” (Citation omitted; internal quotation marks omitted.) LaBow v. Rubin, 95 Conn. App. 454, 468-69, 897 A.2d 136, cert. denied, 280 Conn. 933, 909 A.2d 960 (2006).

It should be noted from the outset that the court’s conclusion that the plaintiffs claim was not barred by the statute of limitations was premised on two intertwined bases. First, the court determined that that statute of limitations was tolled by virtue of the defendant’s continuing course of conduct and did not begin to run until the defendant admitted that her accusations were false on April 11, 2002; therefore, the plaintiff had until April 11, 2005, to assert his claim. Before this time expired, the court concluded that the occurrence of a second event served to toll the statute of limitations once again. Specifically, the court determined that the statute was tolled by virtue of the defendant’s bankruptcy petition, which was filed on April 8, 2005. On appeal, the defendant does not offer any argument related to this second tolling event; rather, the focus of her argument is that the court concluded improperly that the continuing course of conduct applied to toll the statute of limitations in the first place.

The continuing course of conduct doctrine is an oft-cited principle in our jurisprudence, and a review of this authority indicates that the application of the doctrine is premised necessarily on the existence of a duty in effect at the time of the original wrong. “To support a finding of a ‘continuing course of conduct’ that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong.” Fichera v. Mine Hill Corp., 207 Conn. 204, 209, 541 A.2d 472 (1988). “The existence of a duty is a question of law and only if such a duty is found to exist, does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand. . . . Our view of that legal question is plenary, and the plaintiffs claim rises or falls on whether such a continuing duty exists.” (Internal quotation marks omitted.) Smulewicz-Zucker v. Zucker, 98 Conn. App. 419, 423-24, 909 A.2d 76 (2006), cert. denied, 281 Conn. 905, 916 A.2d 45 (2007).

In the present case, the court’s decision to apply the continuing course of conduct doctrine carried an implicit finding that a duty originally existed; however, the context of this duty is not discussed. On review of the parties’ respective arguments on this issue, we note that there appears to be a muddling of the requirements for the application of this doctrine. As we have stated already, the existence of a duty at the time of the original wrong is a prerequisite. If, and only if, this duty has been found to exist, there are two situations, as delineated by our Supreme Court, that would support a finding that the duty continued after cessation of the “act or omission” complained of. Specifically, the court stated: “Where we have upheld a finding that a duty continued to exist after the cessation of the ‘act or omission’ relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act.” Fichera v. Mine Hill Corp., supra, 207 Conn. 210. Thus, there must be a determination that a duty existed and then a subsequent determination of whether that duty is continuing.

This court’s analysis in Smulewicz-Zucker v. Zucker, supra, 98 Conn. App. 419, is particularly instructive to our resolution of this issue because it shares many factual similarities with the present case. In Smulewicz-Zucker, this court addressed the application of the continuing course of conduct doctrine to a plaintiffs claim that she suffered emotional distress as a result of her former husband’s conduct that occurred between 1994 and 1998. Id., 422. Her claim stemming from this conduct was brought in 2001, and the court concluded that the continuing course of conduct doctrine did not apply to toll the statute of limitations for any conduct before 1998. Id., 424-25. On appeal, this court rejected the plaintiffs argument that the continuing course of conduct doctrine can be premised on a purported duty arising from a spousal relationship, particularly when this relationship was terminated prior to the time frame in question. Id., 425. Similarly, in the present case, we can find no authority to support the plaintiffs position that the continuing course of conduct doctrine applies in the context of an alleged duty that arises simply because of the existence of a relationship between the parents of minor children.

In the absence of a breach of a cognizable duty, we conclude that the court improperly applied the continuing course of conduct doctrine to toll the statute of limitations.

II

The defendant next argues that the court improperly concluded that the statements she made to family therapists in 2004 and 2006 were not privileged. She maintains that the statements were made during court-ordered therapy sessions and should be considered absolutely privileged because they were made during the course of a judicial proceeding. We are not persuaded.

In Connecticut, “[t]he class of absolutely privileged communications is narrow, and practically limited to legislative and judicial proceedings, and acts of State.” (Internal quotation marks omitted.) Lega Siciliana Social Club, Inc. v. St. Germaine, 77 Conn. App. 846, 855, 825 A.2d 827, cert. denied, 267 Conn. 901, 838 A.2d 210 (2003). “It is well settled that communications uttered or published in the course of judicial proceedings are absolutely privileged so long as they are in some way pertinent to the subject of the controversy. . . . The effect of an absolute privilege is that damages cannot be recovered for a defamatory statement even if it is published falsely and maliciously .... The policy underlying the privilege is that in certain situations the public interest in having people speak freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements.” (Internal quotation marks omitted.) Id., 855-56; see also Petyan v. Ellis, 200 Conn. 243, 245-46, 251-52, 510 A.2d 1337 (1986). “Whether a communication is published in the course of a judicial proceeding, so as to obtain the benefit of the absolute privilege, is a question of law for the court to decide, and our review is, therefore, plenary.” McManus v. Sweeney, 78 Conn. App. 327, 334, 827 A.2d 708 (2003).

A review of the record reveals that the court found that the defendant failed to prove her special defense asserting privileged communications on the basis of its conclusion that her statements to the therapists were not made in the course of a judicial proceeding. On appeal, the defendant emphasizes that the comments were made during court-ordered sessions and maintains that this constitutes a “judicial proceeding.”

A resolution of this issue requires a discussion of what constitutes judicial proceedings. “The judicial proceeding to which the immunity attaches has not been defined very exactly. It includes any hearing before a tribunal which performs a judicial function, ex parte or otherwise, and whether the hearing is public or not. It includes for example, lunacy, bankruptcy, or naturalization proceedings, and an election contest. . . . This privilege extends to every step of the proceeding until final disposition. . . . [L]ike the privilege which is generally applied to pertinent statements made in formal judicial proceedings, an absolute privilege also attaches to relevant statements made during administrative proceedings which are quasi-judicial in nature.” (Internal quotation marks omitted.) McManus v. Sweeney, supra, 78 Conn. App. 332, quoting Petyan v. Ellis, supra, 200 Conn. 246.

Here, the defendant does not offer any argument or legal analysis to support the application of this definition of “judicial proceeding” to include statements made to a therapist pursuant to a court order for the couple to seek counseling. The only authority cited by the defendant in support of her argument is McManus v. Sweeney, supra, 78 Conn. App. 327, which provides the definition of a judicial proceeding set forth previously and represents a case that falls clearly within the definition’s parameters. See id. (statement made by court-appointed attorney requesting investigation of plaintiffs conduct as it related to Probate Court proceeding subject to absolute privilege). The defendant argues that her statements are subject to an absolute privilege because the therapists had more of a direct interest in the family court proceeding than the recipient of the attorney’s comment in McManus; however, this attempt to correlate her case to the holding in McManus is without merit because the recipient’s interest in the proceeding is not the basis of the privilege. Accordingly, we are not persuaded by her argument.

Ill

The defendant’s final claim is that the court improperly awarded lost wages to the plaintiff. In light of our conclusion that the continuing course of conduct doctrine was improperly applied under the facts of this case, we need not reach the issue of whether the court properly awarded damages, as this will necessarily be reconsidered on remand.

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

In this opinion LAVERY, J., concurred.

LAVINE, J.,

concurring. I agree with the majority that the continuing course of conduct doctrine does not operate to bring the claims of the plaintiff, John D. Watts, within the statute of limitations; General Statutes § 52-577; given the facts of this case and the present state of our law. I write separately to stress that this case is confined to its facts and that in appropriate cases, particularly those involving ongoing abusive relationships, a more flexible application of the doctrine is warranted.

Statutes of limitation serve numerous salutary purposes. They (1) prevent the enforcement of stale or fraudulent claims, (2) aid in the search for truth that may be impaired by loss of evidence, fading memories and the disappearance of documents and (3) advance the finality of litigation. Navin v. Essex Savings Bank, 82 Conn. App. 255, 260-61, 843 A.2d 679, cert. denied, 271 Conn. 902, 859 A.2d 563 (2004).

When an intentional tort involving ongoing allegations of child sexual abuse in the context of a custody dispute is involved, however, strong countervailing concerns exist. The general policy of encouraging lawsuits to be brought at an early date must be weighed against the adverse consequences of fomenting litigation in highly charged family cases involving minor children. I acknowledge that this court has declined to apply the continuing course of conduct doctrine in an action for intentional infliction of emotional distress, concluding that no continuing duty existed on the basis of a former husband and wife relationship. Smulewicz-Zucker v. Zucker, 98 Conn. App. 419, 423-25, 909 A.2d 76 (2006), cert. denied, 281 Conn. 905, 916 A.2d 45 (2007). The practical reality, however, is that even if former spouses do not have a legal duty to one another that brings the continuing course of conduct into play, former spouses, as parents, do have a continuing legal obligation to protect and to promote the best interests of their minor children.

Rather than commence an action the first time the defendant, Heather Chittenden, made false allegations of sexual abuse in 1999, the plaintiff did what any responsible person would do by allowing various authorities—the department of children and families, the state police, the Yale Child Sexual Abuse Clinic— to investigate the allegations. I do not dispute the majority’s conclusion that, given the facts of this case and the current state of our law, the plaintiff waited too long to bring the action. Requiring him to have brought the action at the time the first allegation of sexual abuse was made, however, has serious adverse consequences from a public policy standpoint. Had he brought suit as soon as the false allegations were made, it would have made resolution of the underlying dissolution action more difficult, to the detriment of the parties and, more importantly, to the minor children. Such a requirement injects additional rancor, not to mention cost and aggravation, into an already acrimonious and emotional situation. In cases such as this, parties who are attempting to reach an accommodation involving their minor children should be encouraged to work together, not to sue each other. “Whether we want to encourage suits based on these distressful words and acts, and perhaps destroy the underlying relationship in the process, is debatable. By allowing the postponement of suits premised on conduct arising in the course of committed relationships, application of the continuing violations doctrine gives the parties an ample opportunity to ride out tough roads together.” K. Graham, “The Continuing Violations Doctrine,” 43 Gonz. L. Rev. 271, 307 (2007-2008).

Although this case does not involve ongoing abusive conduct within a marriage, or other committed relationship, it does involve sustained abusive conduct within the context of an ongoing relationship between former spouses, both of whom retain responsibility for protecting their minor children from harm, emotional and otherwise. This case therefore resembles, in significant respects, cases in which courts have taken a flexible, pragmatic approach when evaluating continuing course of conduct claims in domestic violence or domestic abuse cases. See, e.g., Pugliese v. Superior Court, 146 Cal. App. 4th 1444, 1452, 53 Cal. Rptr. 3d 681 (recognizing that notwithstanding “the difficulty a spouse or ex-spouse may have in defending against domestic violence cases, the continuing tort doctrine seems especially applicable in such cases”), review denied, No. S150513, 2007 Cal. LEXIS 3642 (Cal. April 11, 2007); Curtis v. Firth, 123 Idaho 598, 604, 850 P.2d 749 (1993) (“By its very nature this tort will often involve a series of acts over a period of time, rather than one single act causing severe emotional distress. For that reason, we recognize [that] the concept of continuing tort . . . should be extended to apply in other limited contexts, including particularly intentional infliction of emotional distress.”), on appeal after remand, 125 Idaho 229, 869 P.2d 229 (1994); Feltmeirer v. Feltmeirer, 207 Ill. 2d 263, 284, 798 N.E.2d 75 (2003) (agreeing “with the growing number of jurisdictions that have found that the continuing tort rule should be extended to apply in cases of intentional infliction of emotional distress”); Cusseaux v. Pickett, 279 N.J. Super. 335, 345, 652 A.2d 789 (1994) (“It would be contrary to the public policy of this State, not to mention cruel, to limit recovery to only those individual incidents of assault and battery for which the applicable statute of limitations has not yet run. The mate who is responsible for creating the condition suffered by the battered victim must be made to account for his actions—all of his actions.” [Emphasis in original.]). In some cases, a persuasive argument can be made that the statute of limitations should begin to run not when the first incident of abuse occurs, but only when the ongoing abusive conduct has ceased.

The majority opinion is decided on the specific facts of this case and should not be construed to apply to all cases involving claims of intentional infliction of emotional distress. How to apply the statute of limitations in other cases must be determined on the basis of the facts of each case.

For the foregoing reasons, I respectfully concur in the majority opinion.

       The defendant does not argue explicitly that there was not an original duty in existence; rather, she argues that there is an absence of evidence of a special relationship or later wrongful conduct related to the original statements. Likewise, the plaintiff also appears to skip the first step of arguing the existence of an original duty and instead argues that the parties mutual relationship as parents to their children establishes “the type of special relationship . . . contemplated by the continuing course of conduct doctrine . . . .”

       A review of the jurisprudence underlying the continuing course of conduct doctrine reveals that the doctrine originally arose in the context of a negligence action or similar derivation, claims that necessarily involved a breach of a duty in existence at the time of the original wrong. See Fichera v. Mine Hill Corp., supra, 207 Conn. 209-10. This interpretation of the doctrine is also supported by discussions of the policy underlying the doctrine. “The continuing course of conduct doctrine reflects the policy that, during an ongoing relationship, lawsuits are premature because specific tortious acts or omissions may be difficult to identify and may yet be remedied. . . . For example, the doctrine is generally applicable under circumstances where [i]t may be impossible to pinpoint the exact date of aparticular negligent act or omission that caused injury or where the negligence consists of a series of acts or omissions and it is appropriate to allow the course of [action] to terminate before allowing the repose section of the statute of limitations to run . . . .” (Emphasis added; internal quotation marks omitted.) Navin v. Essex Savings Bank, 82 Conn. App. 255, 262-63, 843 A.2d 679, cert. denied, 271 Conn. 902,859 A.2d 563 (2004); Sanborn v. Greenwald, 39 Conn. App. 289, 295-96, 664 A.2d 803, cert. denied, 235 Conn. 925, 666 A.2d 1186 (1995). Accordingly, it stands to reason that the original application assumed the existence of a duty, and further analysis of the doctrine focused on the circumstances that indicated the continuing existence of the original duty.

       In light of this conclusion, we need not reach the second stage of the analysis, which requires a determination that the duty is continuing as evidenced by a special relationship or later wrongful conduct related to the prior act.

       According to the defendant’s testimony, the purpose of this court order was “to reunify the children and the mother through family therapy.”

       The continuing course of conduct doctrine raises extremely complex legal issues. Determining whether a series of acts should be viewed as discrete, or as part of a continuing course of conduct, is often an intractable problem. For a thoughtful discussion of what a continuing violation is and how courts analyze these claims, see K. Graham, supra, 43 Gonz. L. Rev. 271.


author: PER CURIAM.

text:
    RONALD LABOW ET AL. v. MYRNA LABOW ET AL.
    (AC 29217)
    Bishop, DiPentima and Pellegrino, Js.
    Argued March 19
    officially released June 30, 2009

      Richard W. Callahan, with whom was Myma, LaBow, pro se, for the appellant (named defendant).

      Stewart I. Edelstein, with whom was Barbara M. Schellenberg, for the appellee (plaintiff Robert Rubin).
   Opinion

PER CURIAM.

This court has described one of the many appeals involving these parties as a “branch of the extended litigation between . . . Myma LaBow, and her former husband Ronald LaBow”; LaBow v. LaBow, 69 Conn. App. 760, 761, 796 A.2d 592, cert. denied, 261 Conn. 903, 802 A.2d 853 (2002); and another as a “chapter in a saga of hostilities that, for the last thirty-two years, has resulted in extensive litigation in the trial and appellate courts of Connecticut and New York.” Valentine v. LaBow, 95 Conn. App. 436, 438, 897 A.2d 624, cert. denied, 280 Conn. 933, 909 A.2d 963 (2006). We chronicle yet another episode in this unfortunate story that originated more than three decades ago.

The named defendant, Myma LaBow, appeals from the judgment of the trial court ordering a distribution of the proceeds from the partition sale of certain property with 50 percent awarded to the defendant and 50 percent to the plaintiff Robert Rubin. Specifically, the defendant argues that the court denied her right to due process when it ordered this distribution without conducting an evidentiary hearing. We disagree and accordingly affirm the judgment of the trial court.

This court previously set forth the following facts. “On July 9, 1974, the defendant initiated a dissolution of marriage action against her then husband, Ronald LaBow. At that time, the LaBows jointly owned, with rights of survivorship, twenty-nine acres of property in Weston and Fairfield. The property consisted of a twenty-two acre parcel in Weston and an adjacent seven acre parcel in Fairfield.” Id., 438-39.

During the pendency of the dissolution action, Ronald LaBow transferred his interest in the Weston parcel to a trust with Richard H. Valentine acting as trustee. Id., 439. When the court issued the dissolution decree, Ronald LaBow possessed his half interest in the Fairfield parcel. Id. The dissolution decree did not transfer title or direct the conveyance of either parcel to the defendant. Id. Ronald LaBow subsequently transferred his interest in the Fairfield parcel to Anthony DeVita. Id.

After Valentine commenced a partition action, he stepped down as trustee and was replaced by Ronald LaBow. Id., 439-40. “Thereafter, [Robert] Rubin, a neighbor of the LaBows, purchased the Weston parcel from the trust on January 5,1985, as well as the Fairfield parcel from DeVita on January 16, 1985. Consequently, since January, 1985, Rubin and the defendant have owned the Weston and Fairfield parcels as tenants in common.” Id., 440. Following the plaintiffs acquisition of both properties, the defendant commenced an action against him, challenging his ownership. Id.

We subsequently concluded, inter alia, that the trial court properly had (1) determined that the plaintiffs acquisition of the properties was valid and (2) rendered summary judgment in favor of the plaintiff seeking a partition of the property. Id., 438. On December 15, 2006, the plaintiff filed a motion requesting the appointment of a committee for the partition sale and to set a sale date. The court granted this motion on March 5, 2007, and set the sale date for June 30, 2007.

On June 29, 2007, the court, Comerford, J., denied the defendant’s motion, filed two days earlier, to extend the sale date. On July 2, 2007, the committee filed a motion requesting that the court approve the sale to the defendant, the highest bidder at the public auction, for a sale price of $1.7 million, which the court granted on August 10, 2007. The defendant filed a stream of motions pertaining to the approval of the committee sale. The court, Blawie, J., held a hearing on those motions on September 19, 2007.

At the outset of the hearing, the defendant stated: “My motions before [the court] are to, one, open the judgment against me that denied me a right to a trial on quiet title, and two, reconsideration of the ruling . . . that denied me opening the judgment on partition. My requests to open are based on new evidence and new discoveries.” The court ultimately denied the defendant’s motions and issued an order precluding her “from filing any more pleadings relating to the trust or the conveyance of this parcel of land at issue . . . .” It further ordered that the proceeds from the partition sale be distributed equally between the plaintiff and the defendant. The defendant then objected, arguing that she was entitled to a hearing to determine whether an equal distribution of the sale proceeds was proper. The court, noting that the ownership of the land previously had been litigated, affirmed its order of an equal distribution.

On appeal, the defendant argues that the court improperly denied her the right to an evidentiary hearing to determine how the sale proceeds should be distributed. Specifically, she argues that she was entitled to a hearing to prove that (1) the plaintiff was not a bona fide purchaser, (2) she paid more than her share of the taxes on the property and (3) the plaintiffs action had damaged the property via waste. We reject all of the defendant’s arguments in turn.

At the outset, we briefly identify the relevant principles of law pertaining to a partition by sale. “A partition by sale, although a creature of statute, is an equitable action. . . . The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court. . . . Our standard of review is whether the trial court abused its discretion. ... In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action.” (Citation omitted; internal quotation marks omitted.) Fernandes v. Rodriguez, 90 Conn. App. 601, 609, 879 A.2d 897, cert. denied, 275 Conn. 927, 883 A.2d 1243 (2005), cert. denied, 547 U.S. 1027, 126 S. Ct. 1585, 164 L. Ed. 2d 312 (2006); see also Geib v. McKinney, 224 Conn. 219, 228-29, 617 A.2d 1377 (1992).

Our Supreme Court has stated that “it is not always true that each tenant in common or joint tenant is entitled to equal shares in the real estate. Levay v. Levay, 137 Conn. 92, 96, 75 A.2d 400 (1950) (Although each party was the owner of an undivided one-half interest in the property, it does not follow that he or she will necessarily be entitled to equal shares of the moneys obtained from the sale. Equities must be considered and, if established, must be liquidated before distribution is ordered.) . . . .” (Citation omitted; internal quotation marks omitted.) Fernandes v. Rodrigues, 255 Conn. 47, 60, 761 A.2d 1283 (2000), on appeal after remand, 90 Conn. App. 601, 879 A.2d 897, cert. denied, 275 Conn. 927, 883 A.2d 1243 (2005), cert. denied, 547 U.S. 1027, 126 S. Ct. 1585, 164 L. Ed. 2d 312 (2006); see also DiCerto v. Jones, 108 Conn. App. 184, 190, 947 A.2d 409 (2008).

The defendant first argues that she was entitled to an evidentiary hearing to assert her claim that she was entitled to a greater share of the equitable distribution of the sale proceeds. Specifically, she maintains that she was deprived of her right to present a good faith claim that the plaintiff was not a bona fide purchaser. We are not persuaded.

At the September 19,2007 hearing, the court provided the defendant with the opportunity to present evidence regarding her equitable claims with respect to the sale proceeds. The defendant instead attempted to revisit the issue of ownership of the property. For example, she stated: “Your Honor, I am trying to say . . . that [the plaintiff is] not a true owner.” She later indicated that it was “unfair” that the plaintiff would receive 50 percent and that she was entitled to a hearing “to see if [the plaintiff was] a true owner.” In short, the defendant failed to offer any evidence as to the division of the partition proceeds and instead attempted to focus her frenzied attacks on areas that previously had been determined. Rather than take the opportunity to challenge the manner in which the money would be divided, she elected to argue that the plaintiff had not been a rightful co-owner of the property prior to the partition sale.

It cannot be disputed that issues of the validity of the trust and the validity of the plaintiffs purchase of the property have been extensively litigated. Both the Superior Court and this court have conclusively established that prior to the partition sale, the plaintiff and the defendant were 50 percent owners of the property. The defendant had no legal interest in the plaintiffs ownership. Accordingly, she lacks standing to raise such a challenge, and, therefore, the court properly determined that a hearing was not required.

“Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.” (Internal quotation marks omitted.) Ardito v. Olinger, 65 Conn. App. 295, 299, 782 A.2d 698, cert. denied, 258 Conn. 942, 786 A.2d 429 (2001). We agree with Judge Fuller’s statement, made in his February 7, 1994 decision, that the defendant “has no standing to question the terms under which Ronald LaBow and DeVita sold the one-half interest in both parcels to [the plaintiff] since she no longer had any right to attack the prior conveyances as fraudulent. ” It has been determined judicially that the defendant had no interest in property that the plaintiff eventually obtained. See Valentine v. LaBow, supra, 95 Conn. App. 436. We conclude, therefore, that because the defendant lacked standing to challenge the equitable distribution of the partition proceeds at the September 19, 2007 hearing, the court was not obligated to conduct an evidentiary hearing.

The defendant also claims that she was entitled to a hearing to show that (1) she paid more than her share of the taxes on the property, and (2) the plaintiffs action had damaged the property via waste. These claims were not raised at trial and we decline to review them. “We have repeatedly held that this court will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim. . . . [S]ee also Practice Book § 60-5 (court not bound to consider claim unless it was distinctly raised at the trial).” (Internal quotation marks omitted.) Mokonnen v. Pro Park, Inc., 113 Conn. App. 765, 770, 968 A.2d 916 (2009). “[T]o review [a] claim, which has been articulated for the first time on appeal and not before the trial court, would result in a trial by ambuscade of the trial judge.” (Internal quotation marks omitted.) Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 798, 967 A.2d 1 (2009).

The defendant was provided with a forum to present her claims regarding the distribution of the sale from the partition sale. After considering the issues presented by the defendant at the September 19, 2007 hearing, the court determined that a further evidentiary hearing was not required. We cannot say that the court, in balancing the equities as it did, abused its discretion.

The judgment is affirmed.

       Several subsequent encumbrancers also were named as defendants, but they are not parties to this appeal. We therefore refer in the opinion to Myma LaBow as the defendant.

       The original plaintiff, Richard H. Valentine, has been replaced in this action by Ronald LaBow, trustee, and Rubin. For convenience, we refer to Rubin as the plaintiff in this opinion.

       “The right to partition in Connecticut is well settled. [General Statutes §] 52-495 gives discretionary authority to courts of equitable jurisdiction to order, upon the complaint of any interested person, the physical partition of any real estate held by tenants in common . . . .” (Internal quotation marks omitted.) Sclafani v. Dweck, 85 Conn. App. 151, 155, 856 A.2d 487, cert. denied, 271 Conn. 944, 861 A.2d 1177 (2004).

       The defendant’s motion was captioned as a motion for stay-execution of judgment and a motion to open, set aside, vacate decision-judgment.

       The defendant’s brief contains a reference to the plain error doctrine; see Practice Book § 60-5; however, it is not clear if this request applies to the claims of unpaid taxes and waste. In any event, we conclude that application of the plain error doctrine is unwarranted in the present case.