author: DiPENTIMA, C. J.

text:
    DANIEL LYNCH v. LAURIE LYNCH
    (AC 31651)
    DiPentima, C. X, and Robinson and Flynn, Js.

      Argued November 16, 2011
    officially released April 24, 2012

      William F. Gallagher, for the appellant (plaintiff).

      Samuel V. Schoonmaker TV, with whom, on the brief, were Wendy Dunne DiChristina and Stanley M. Goldstein, for the appellee (defendant).
   Opinion

DiPENTIMA, C. J.

The plaintiff, Daniel Lynch, challenges a myriad of financial orders entered by the trial court at the time of the dissolution judgment and thereafter. In his appeal, the plaintiff claims error in the court’s disposition of two pendente lite motions and three of the financial orders of the judgment. In his four amended appeals, the plaintiff raises five additional claimed errors in various postjudgment orders. We reverse in part the judgment of the trial court.

The record reveals the following relevant facts and procedural history. The parties were married in 1992, and two children were bom of the marriage. On September 14,2009, the court rendered judgment dissolving the marriage on the ground of irretrievable breakdown. The court found that the plaintiff did not have a great deal of financial success, and that the defendant, Laurie Lynch, annually earned in the $70,000 to $80,000 range. The court also found that the plaintiff did not want to sell the marital home until the parties’ oldest child graduated from high school, while the defendant wanted the marital home to be sold immediately because the parties financially could not maintain the home and foreclosure of the existing mortgage was imminent.

The court further found that while the family lived frugally, the parties’ assets and income as well as expenditures “leave little light at the end of the tunnel.” Although the plaintiff has published a book and has had some financial gain therefrom, the court found that the chances of reversing the parties’ financial plight were not encouraging. The court noted that the parties do not communicate with one another, but both wanted to remain in the house until it was sold; the court stated that it would not upset that arrangement. The court concluded that there was no viable alternative to an immediate sale of the marital home.

After making its findings, the court addressed the defendant’s motion for modification dated February 4, 2009. This motion asserted that the parties’ prior stipulation that each party pay equally certain household and children’s expenses should be modified on the basis of an increase in the plaintiffs income. The court agreed and ordered the plaintiff to pay 60 percent and the defendant to pay 40 percent of the obligations set forth in the stipulation.

The court then distributed the assets and liabilities of the marital estate and issued a number of financial orders. The court ordered that the plaintiff pay periodic alimony to the defendant at the rate of $200 per week and child support to the defendant at the rate of $135 per week. The court also ordered that the marital home immediately be placed on the market for sale and that the net proceeds from the sale be divided equally between the parties. The court ordered that the plaintiff pay to the defendant 30 percent of the value of his unsold books within thirty days of the date of dissolution of the marriage, and that the plaintiff pay the defendant 30 percent of all income that he receives in the future from the sale of the books. Finally, the court ordered that the plaintiff pay $15,000 toward the defendant’s attorney’s fees incurred during pretrial and trial proceedings. The plaintiff then filed an appeal from the judgment of dissolution.

Thereafter, the court ordered that the plaintiff pay to the defendant the sum of $7500 toward her appellate attorney’s fees. On November 24, 2009, the defendant filed a postjudgment motion for sole use and possession of the marital home, which the court granted. In December, 2009, and May, 2010, the plaintiff filed postjudgment motions for modification of certain financial orders, which the court denied. In July, 2010, the defendant filed a postjudgment motion for modification seeking an increase in support, which the court granted for a limited time period. The plaintiff filed four amended appeals challenging these rulings. Additional facts will be set forth as necessary.

In his original appeal, the plaintiff argues that the court improperly (1) granted the defendant’s pendente lite motion for modification, (2) failed to address the plaintiffs pendente lite motion for contempt, (3) ordered him to pay alimony and child support at the same time as it ordered him to pay 60 percent of household and children’s expenses, (4) ordered that the intellectual property of the plaintiff be divided as an asset while also ordering that a portion of the income generated by the intellectual property be paid to the defendant and (5) ordered him to pay $15,000 of the defendant’s attorney’s fees incurred during pretrial and trial proceedings. In his amended appeals, the plaintiff challenges various postjudgment orders of the court; specifically, he argues that the court improperly (6) ordered him to pay appellate attorney’s fees, (7) granted the defendant’s postjudgment motion for sole use and possession of the marital home, (8) denied his December 30, 2009 postjudgment motion for modification, (9) denied his May 25, 2010 postjudgment motion for modification and (10) denied his motion for a continuance and granted the defendant’s postjudgment motion for modification.

We begin by setting forth the applicable standard of review. “An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . .

“A fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria.” (Internal quotation marks omitted.) Cleary v. Cleary, 103 Conn. App. 798, 800-801, 930 A.2d 811 (2007). Further, we note that “[t]he issues involving financial orders are entirely interwoven. The rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other. . . . Furthermore, trial courts are endowed with broad discretion to distribute property in connection with a dissolution of marriage.” (Citation omitted; internal quotation marks omitted.) Greco v. Greco, 275 Conn. 348, 354, 880 A.2d 872 (2005). With these principles in mind, we first address the plaintiffs claims in his original appeal and then turn to the claims raised in his amended appeals.

I

A

As noted previously, the plaintiff claims error in the court’s resolution of two motions filed pendente lite but considered by the court at the time of trial. First, the plaintiff claims that the court improperly granted the defendant’s motion for modification of the parties’ December 11, 2008 stipulation. We disagree.

“The court’s authority to modify alimony orders is found in General Statutes § 46b-86 (a), which provides in relevant part that [u]nless and to the extent that the decree precludes modification ... an order for alimony or support pendente lite may . . . be . . . modified . . . upon a showing of a substantial change in the circumstances of either party .... Additionally, this court has held that [t]he [trial] 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.” (Internal quotation marks omitted.) Angle v. Angle, 100 Conn. App. 763, 772, 920 A.2d 1018 (2007).

The December 11, 2008 stipulation provided that the parties pay equally the obligations set forth therein. See footnote 3 of this opinion. The defendant’s February 4, 2009 motion for modification alleged a substantial change in circumstances because, since the date of the stipulation, the plaintiff had received “income related to a book he recently authored and published.” The court concluded that a substantial change in circumstances existed on the basis of the plaintiffs increase in income as well as the defendant’s decrease in income. Accordingly, the court ordered that the plaintiff pay 60 percent of the obligations enumerated in the stipulation.

The plaintiff argues that the court’s finding that there was “some decrease in [the] defendant’s earnings” was clearly erroneous. On December 11, 2008, the day before the effective date of the stipulation, the defendant filed a financial affidavit reporting a gross weekly income of $1198 and a net weekly income of $933. At trial, the defendant testified that her gross weekly income had decreased to $1077. The plaintiff argues that the defendant “failed to disclose substantial commissions earned” in the course of her employment. “As is often stated, we do not reverse the factual findings of the trial court unless they are clearly erroneous and find no support in the evidence.” (Emphasis added.) Crews v. Crews, 107 Conn. App. 279, 312, 945 A.2d 502 (2008), aff'd, 295 Conn. 153, 989 A.2d 1060 (2010). Because the defendant’s financial affidavits provide some evidence of a decrease in her income, we cannot conclude that the court’s finding in this regard was clearly erroneous. The court was entitled to credit the defendant’s testimony regarding her income, and we will not disturb the court’s determination on appeal. See Spilke v. Spilke, 116 Conn. App. 590, 597, 976 A.2d 69, cert. denied, 294 Conn. 918, 984 A.2d 68 (2009). Moreover, the central basis for the court’s granting of the defendant’s motion for modification was the evidence of the plaintiffs substantial increase in income due to the publication of his book. Specifically, the defendant testified at trial that she received letters from the plaintiff disclosing that he received three checks between December 29,2008, and January 26,2009, totaling $50,857.75, and these letters were admitted into evidence. As a reviewing court, we -will not “disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts.” (Internal quotation marks omitted.) Borkowski v. Borkowski, 228 Conn. 729, 739, 638 A.2d 1060 (1994). Therefore, on the basis of our review of the record, we cannot conclude that the court abused its discretion in granting the defendant’s motion for modification. Accordingly, we affirm the portion of the court’s order that was applied retroactively from February 4, 2009, to the time of judgment. The portion of the court’s order that applies from the date of judgment until the sale of the marital home, however, was part of the court’s mosaic of financial orders. As we explain in part I B of this opinion, because we must remand the case for a new hearing on all financial orders, we remand this latter portion of the court’s order.

Second, the plaintiff claims that the court improperly failed to address his January 29, 2009 pendente lite motion for contempt. We agree.

The plaintiffs motion for contempt asserted that the defendant had failed to reimburse him for one half of the expenses enumerated in the 2008 stipulation in the amount of $1172.56. At trial, the defendant testified that she believed she owed the plaintiff some money, but that she did not know how much because she had no documentation to show exactly what he had paid toward the expenses at issue in the stipulation. As of the time of trial, the plaintiff claimed that the defendant owed him $9381.02. The court did not address this alleged arrearage in its memorandum of decision, but granted the defendant’s pendente lite motion for modification. The plaintiff filed a motion for articulation, requesting that the court articulate whether it found any arrearage due to him by the defendant in accordance with the parties’ stipulation. The court denied this aspect of the motion. In addition, the plaintiff filed a motion to reargue or for reconsideration of the financial, parenting and all other orders in the court’s memorandum of decision dissolving the parties’ marriage. The court denied that motion.

As we have noted, the court granted the defendant’s motion for modification, retroactively increasing the plaintiffs obligation for the expenses enumerated in the prior stipulation to 60 percent, rather than 50 percent. Because the defendant did not dispute at trial that arrearages were owed, the court should have addressed these arrearages in its memorandum of decision. This court has held that “[r]eview may be made . . . of that part of a final order which fails to . . . incorporate an accumulated arrearage of pendente lite alimony. . . . Indeed, it would be error for a trial court ... to fail to incorporate an accumulated arrearage of pendente lite alimony in a final order granting dissolution. . . .

“Here . . . although the court did not expressly forgive the arrearage of pendente lite support, it failed to include the arrearage in its judgment dissolving the marriage. . . . [T]hat failure to include an arrearage in a final order of dissolution has the same effect on the party entitled to the pendente lite arrearage as it would have had if the court had expressly modified or forgiven the pendente lite order at the time of dissolution; it strips that party of a vested property right and constitutes an impermissible retroactive modification of the pendente lite orders in violation of § 46b-86. Even if it is assumed that the [party] was not stripped of a vested property right because [the party] could again return to court and seek a judgment in the amount of the arrearage in an independent separate action, judicial economy concerns should prevail. It was improper for the court to omit the pendente lite arrearage in its final judgment of dissolution even though the [party] may not have specifically requested that in [his] claims for relief.” (Citations omitted; internal quotation marks omitted.) Clark v. Clark, 127 Conn. App. 148, 157-59, 13 A.3d 682, cert. denied, 301 Conn. 914, 19 A.3d 1260 (2011). Thus, we conclude that the matter must be remanded for a determination of the amount of the pendente lite arrearage to be included in the judgment, along with an appropriate order for its payment.

B

The plaintiff also challenges a number of the other orders entered as part of the court’s judgment. The plaintiff argues that the court improperly ordered that his intellectual property be divided as an asset while also ordering that a portion of the income generated by the intellectual property be paid to the defendant. We agree.

It is well established that when a spouse holds an interest in intellectual property, the proceeds flowing therefrom constitute marital property subject to division, so long as such proceeds or royalties are neither “indefinite nor speculative.” Gallo v. Gallo, 184 Conn. 36, 48, 440 A.2d 782 (1981). A contractually established right to receive royalties from the sale of books, “unlike a potential inheritance which is speculative,” is “more akin to an order to sell the marital home and divide the proceeds.” Id. Here, it is undisputed that the plaintiff, at the time of the court’s order, had a contractual right to royalties from the sale of his book. Thus, these royalties constitute marital property subject to division by the court.

The court’s order that the plaintiff also pay to the defendant 30 percent of the value of the unsold books, however, was error. Our Supreme Court has held that the consideration of a marital asset in both the property distribution and alimony award does not constitute “double dipping” unless “any portion of the [asset] assigned to the nonemployee spouse was counted in determining the employee spouse’s resources for purposes of alimony.” (Internal quotation marks omitted.) Krafick v. Krafick, 234 Conn. 783, 805 n.26, 663 A.2d 365 (1995). Here, the court divided the plaintiffs intellectual property by ordering him to pay the defendant a percentage of the value of the unsold books and then ordered him to pay income in the form of royalties from the sale of all of the books, even those whose value was allocated to the defendant.

Where an asset does not itself produce significant income, our Supreme Court has concluded that the asset may be considered for purposes of property division and alimony or support awards. See Greco v. Greco, supra, 275 Conn. 357 n.8. In Greco, the trial court ordered that the defendant relinquish to the plaintiff his stock in a closely held corporation. Id., 357. The defendant’s principal source of income was his salary from that corporation. Id. Our Supreme Court concluded that the trial court’s “taking the corporation into account in both the property division and in the award of alimony and other payments” did not constitute double dipping. (Internal quotation marks omitted.) Id., 357 n.8. The court reasoned that “the stock itself did not constitute a significant resource or source of income and the trial court did not attribute any such income (e.g. cash dividends) to the defendant in determining his income for the purpose of calculating alimony.” Id. In the present case, by contrast, the plaintiffs inventory of books did constitute a significant source of income because the books directly produced a significant stream of income, namely, royalties. Thus, the present case is distinguishable from Greco. We conclude that the court improperly awarded to the defendant 30 percent of the value of the plaintiffs unsold books. We conclude that the court’s granting of 30 percent of the royalties derived from the sale of the books was proper.

Because we conclude that the court’s marital property distribution orders were improper in part, it is necessary to remand the case for reconsideration of all the financial matters. “The orders are interwoven and constitute a carefully crafted mosaic [and] [w]hen we disrupt a single tile in this mosaic, we place in doubt the propriety of other financial orders that the trial court may have deemed equitable in relation to the entire distribution scheme.” (Citation omitted; internal quotation marks omitted.) Tyc v. Tyc, 40 Conn. App. 562, 569, 672 A.2d 526, cert. denied, 237 Conn. 916, 676 A.2d 398 (1996). The court’s order awarding 30 percent of the value of the unsold books to the defendant is not severable from the rest of the court’s financial orders because the order affects the other aspects of its judgment. See Oldani v. Oldani, 132 Conn. App. 609, 624-25, 34 A.3d 407 (2011); Brooks v. Brooks, 121 Conn. App. 659, 672, 997 A.2d 504 (2010) (“[b]ecause it is uncertain whether the court’s financial awards will remain intact after reconsidering the issue of its lump sum alimony award consistent with this opinion today, the entirety of the mosaic must be refashioned”); compare Misthopoulos v. Misthopoulos, 297 Conn. 358, 389-90, 999 A.2d 721 (2010) (concluding that improper order requiring defendant to pay 20 percent of annual net cash bonus, 20 percent of any undetermined future tax refund, and 20 percent of 2005 net cash bonus as child support was severable from alimony, property distribution and other unrelated financial orders); Smith v. Smith, 249 Conn. 265, 278-79, 752 A.2d 1023 (1999) (affirming limited remand regarding future interest in trust, where value of trust was unknown and not taken into account in other financial orders). Accordingly, we must remand the matter to the trial court with direction to hold a new hearing as to all financial orders.

II

Finally, the plaintiff claims that the court, on December 10, 2009, improperly granted the defendant’s post-judgment motion, dated November 24, 2009, for sole use and possession of the marital home. Specifically, the plaintiff claims that the court lacked jurisdiction to grant this motion postjudgment. We disagree. “[Bjecause [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary. . . . [A] lack of subject matter jurisdiction can be raised at any time and cannot be waived by either party.” (Internal quotation marks omitted.) Fewtrell v. Fewtrell, 87 Conn. App. 526, 529-30, 865 A.2d 1240 (2005).

“Absent waiver, consent, submission to jurisdiction or statutory exception, the court is without subject matter jurisdiction to modify or correct a final judgment after the four month period for opening or setting aside a civil judgment has passed pursuant to General Statutes § 52-212a. . . . The court, however, retains continuing jurisdiction to modify final orders for the periodic payment of alimony or support, and the care, custody and visitation of minor children, subject to proof of certain conditions as provided in General Statutes §§ 46b-86 and 46b-56. The court does not retain continuing jurisdiction over that portion of a dissolution judgment providing for the assignment of property of one party to the other under General Statutes § 46b-81.” (Citations omitted; internal quotation marks omitted.) Fiddelman v. Redmon, 37 Conn. App. 397, 401, 656 A.2d 234 (1995).

The court did not lack jurisdiction to grant the defendant’s motion. In its memorandum of decision rendering judgment, the court stated: “It should be noted that the parties do not communicate with one another but both want to remain in the house until it is actually sold. The court will not upset that arrangement. The court sees no alternative to an immediate sale of the marital home.” The court did not make this statement in the section of its memorandum of decision setting forth its property distribution orders, but rather in its introduction of factual findings. See Passamano v. Passamano, 228 Conn. 85, 91, 634 A.2d 891 (1993) (“[w]hen the decree is silent as to the characterization of an order, an analysis of the structure of the dissolution decree is highly instructive”). The court’s aim in allowing the parties to live together until the sale of the marital home was to uphold their own agreement, not to distribute property. The court did not award ownership of the marital home to the defendant in granting the motion; to the contrary, it ordered that the property be sold immediately.

The defendant’s motion alleged that it was in the “best interest of the [defendant and the minor children of the parties” that the plaintiff vacate the premises. At the hearing, the parties admitted that the living situation had had a negative impact on themselves and the children. In granting the defendant’s motion, the court did not order an impermissible postjudgment property distribution. Rather, the court was modifying the living arrangement of the parties in accordance with the best interests of the children and the parties. See Fiddelman v. Redmon, supra, 37 Conn. App. 403-404 (postjudgment motion for exclusive possession properly granted where parties participated in “birdnesting arrangement,” which court characterized not as property assignment but as part of custody award); see also Adamo v. Adamo, 123 Conn. App. 38, 40, 1 A.3d 221 (trial court granted exclusive possession to plaintiff until she received lump sum payment from defendant), cert. denied, 298 Conn. 916, 4 A.3d 830 (2010). Therefore, because the court’s order directing the plaintiff to vacate the marital home was not an assignment of property, we do not conclude that it lacked jurisdiction to make such an order.

The judgment is reversed as to the financial orders only, except with respect to the portion of the court’s order granting the defendant’s February 4, 2009 pen-dente lite motion for modification that applies retroactively from February 4, 2009, until the date of judgment, which is affirmed, and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       The parties executed a parenting plan that the court approved and attached as exhibit A to its memorandum of decision. Custody is not at issue in this appeal.

       At trial, the parties stipulated that this motion would be applied retroactively if granted.

       The defendant’s motion referenced a paragraph of the stipulation, approved by the court on December 11, 2008, providing that the parties pay equally the following: “[MJortgage including real estate taxes and homeowner’s insurance, all children’s expenses, all utilities, life, health and auto insurance premiums and groceries for the family. Each party shall pay their own auto expenses except for auto insurance. Parties must agree on children’s expenses. No liquor or wine is to be included in the groceries.”

       The court issued various other orders in its dissolution judgment, which the plaintiff has not challenged on appeal.

       Specifically, the defendant asserted that the plaintiff had disclosed that he received the following sums related to the sales of his book since the date of the stipulation: (a) $9339.50, received on December 29, 2008; (b) $1197.40, received on January 20, 2009; and (c) $40,320.85, received on January 26, 2009.

       The plaintiff also argues that the court improperly found that the defendant’s income had decreased because the court also found that the defendant “earns in a $70,000 to $80,000 range,” which calculates to a gross weekly income in a $1346 to $1538 range. We do not agree that the court’s findings are mutually exclusive. At trial, the defendant testified that while working for her previous employer, she earned between $75,000 and $78,000 and that her income had since decreased. We also note the following colloquy which took place at trial:

        “[The Plaintiffs Counsel]: Okay. The financial records, ma’am, 2002,2003, 2004, 2005, 2006, 2007, and 2008, you and [the plaintiff] were making pretty much the same money. You actually made a couple years [$75,000] or $78,000 and he was making [$50,000] or $60,000?
      “[The Defendant]: Because he chose not to go out into the workforce. That was his choice.”
      Thus, the court could have found that while the defendant normally earns in a $70,000 to $80,000 range, her income had decreased slightly at the time of trial because of her change in employment.

       The defendant argues that because the court did not rule on the contempt motion, the plaintiffs claim does not qualify as an appeal from a final judgment. This court has held, however, that “[a] trial court’s decision not to consider a motion properly before it is the functional equivalent of a denial. . . ." (Internal quotation marks omitted.) Gong v. Huang, 129 Conn. App. 141, 148, 21 A.3d 474, cert. denied, 302 Conn. 907, 23 A.3d 1247 (2011). In this case, the court’s functional denial of the plaintiffs motion for contempt at the time of the dissolution was an appealable final judgment.

       We also note the following relevant colloquy regarding e-mail correspondences between the parties, which were admitted into evidence:
      “[The Plaintiffs Counsel]: Mrs. Lynch, I’d like you to go to the February 8 e-mail from [the plaintiff] to you.
      “[The Defendant]: Yes.
      “[The Plaintiffs Counsel]: And there — it says there . . . since [December 11], we have paid a combined $19,202.85 for allowable shared expenses. Of this amount [the plaintiff has] paid $11,860.64 and you have paid $7342.21. Compare with a fifty-fifty required total of $9601.42. . . .
      “[The Plaintiffs Counsel]: All right. And at that point when you got back [to him], did you dispute to your husband that you owed him two thousand some-odd dollars?
      “[The Defendant]: As of this date, no.”

       At oral argument before this court, the plaintiff for the first time argued that the standard of review for this claim was plenary. First, “[ajppellate courts generally do not consider claims raised for the first time at oral argument.” (Internal quotation marks omitted.) Max’s Place, LLC v. DJS Realty, LLC, 123 Conn. App. 408, 414, 1 A.3d 1199 (2010). Second, we disagree with the plaintiff that a plenary standard of review applies to this claim. “[T]he abuse of discretion standard applies ... to decisions based solely on factual determinations made by the trial court. See, e.g., Simms v. Simms, 283 Conn. 494, 502, 927 A.2d 894 (2007) (alimony orders subjected to abuse of discretion review); Sablosky v. Sablosky, 258 Conn. 713, 721, 784 A.2d 890 (2001) (contempt orders subjected to abuse of discretion review); Madigan v. Madigan, 224 Conn. 749, 758, 620 A.2d 1276 (1993) (custody orders subjected to abuse of discretion review).” Crews v. Crews, 295 Conn. 153, 164-65, 989 A.2d 1060 (2010). Here, the decision of the court to award royalties plus a portion of the value of the unsold books constituted a factual determination. The court did not conduct a legal analysis or consider a mixed question of law or fact in making this determination. See id. Therefore, we apply the abuse of discretion standard of review set forth previously in reviewing this claim.

       The defendant argues that the plaintiffs financial affidavits were not credible. Specifically, the defendant stated that when the plaintiffs book sales exceeded expenses, he removed them from his income calculations and treated them as assets. To the extent that the defendant suggests that this was the reason the court awarded the defendant a portion of the unsold books in addition to royalties, we note that the court never made a finding in this regard. Although the court did later articulate that certain aspects of the plaintiffs testimony regarding his income were not credible, we cannot infer that the issue of the plaintiffs credibility was the reason that the court decided this issue the way that it did.

       We have not found any cases from other jurisdictions where a court ordered that a spouse pay a portion of an income stream derived from intellectual property and also ordered that the spouse pay a percentage of the value of that property. See, e.g., Rodrigue v. Rodrigue, 218 F.3d 432, 435-39 (5th Cir. 2000) (concluding that owner spouse alone possessed right to possess, use, transfer, alienate and encumber copyright, but that both spouses possessed right to receive and enjoy economic benefits produced by or derived therefrom), cert. denied, 532 U.S. 905, 121 S. Ct. 1227, 149 L. Ed. 2d 137 (2001); In re Marriage of Heinze, 257 Ill. App. 3d 782, 785-86, 631 N.E.2d 728 (1994) (postdivorce royalties from book written during marriage constituted distributable marital property); Dunn v. Dunn, 802 P.2d 1314, 1319 (Utah App. 1990) (future royalty income from husband’s invention of surgical instruments was community property).

       We need not review the plaintiffs claims challenging the other financial orders rendered in the dissolution judgment “based on our partial reversal of that judgment and our remand to the trial court for new financial orders.” Oldani v. Oldani, supra, 132 Conn. App. 625 n.11. As to the plaintiffs arguments that the court improperly (1) granted the defendant’s motion for appellate attorney’s fees, (2) denied two of his posijudgment motions for modification and (3) granted the defendant’s postjudgment motion for modification, these arguments have been rendered moot by our remand order, and there is no need for us to further address these arguments. See id.

       The plaintiff filed a motion for review of the court’s denial of his motion for articulation regarding this issue, which this court granted. The court subsequently articulated that it did not order the parties to share the marital residence postjudgment, as the plaintiffs motion for articulation had alleged. Rather, the court explained that its judgment “does recite that at the time of trial that both parties wanted to remain in the home and that the court would not upset that arrangement and further ordered that there should be an immediate sale of the marital home.”
      The plaintiff argues that the court’s articulation fails to address either the factual or legal basis for the original order granting the defendant’s motion. It is axiomatic that the appellant has the responsibility of providing this court with an adequate record for review. See Practice Book § 61-10. We conclude, however, that the court set forth sufficient findings and conclusions, and we will review the claim on the basis of the record before us. See Phillips v. Phillips, 101 Conn. App. 65, 72 n.1, 922 A.2d 1100 (2007) (reviewing claim although “recognizing the limited usefulness of the court’s articulation”).

       The court’s articulation stated that this claim is “moot since the [plaintiff] has since vacated the marital home.” We note, however, that the plaintiff vacated the marital home in accordance with the court’s order. If the plaintiff had not done so, he would have faced a possible contempt finding. Moreover, although we conclude that the court properly granted the defendant’s motion, if we had agreed with the plaintiff and remanded the matter, the court could have granted practical relief. The court could have, for example, modified the parties’ living arrangements regarding who would live in the marital home before its sale. Therefore, we do not conclude that this claim is moot.

       The plaintiff argues that General Statutes § 46b-83 only grants the authority to award exclusive use and possession of the marital home pendente lite, rather than postjudgment. Section 46b-83 (a) provides in relevant part: “The court may also award exclusive use of the family home or any other dwelling unit which is available for use as a residence pendente lite to either of the parties as is just and equitable without regard to the respective interests of the parties in the property.” We note, however, that § 46b-83 (a) does not preclude the court from making a temporary order regarding the living arrangements of the parties until the marital home is sold.

       The defendant testified that “when the court ordered that we would live together until the house was sold, that was on the assumption that the house was going to [be] put on the market right away. [The plaintiff] is appealing the divorce, and I think it’s indefinite when this is ever going to end. Since then, there [have] been a few occasions where [the plaintiffs] inability to control his anger and rage has escalated the tension in our house to really an unbearable level both for me and for the kids.”
      In addition, at the December 10, 2009 hearing, the following colloquy occurred between the plaintiff and the defendant’s counsel:
      “[The Defendant’s Counsel]: Sir, do you believe that it is in the best interest of the children that they not have to see the tension and live in the tension that exists in your home while the appeal is pending?
      “[The Plaintiff]: The way the question is asked, I have to say yes.”


source: Caselaw Access Project

license: Public Domain

text:
    KENNEDY FUNDING, INC. v. GREENWICH LANDING, LLC, ET AL.
    (AC 33725)
    Alvord, Sheldon and Peters, Js.

      Argued March 5
    officially released April 24, 2012

      Christopher G. Brown, for the appellants (defendants).

      John F. Slane, Jr., for the appellee (plaintiff).
   Opinion

PETERS, J.

In RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 228-33, 32 A.3d 307 (2011), our Supreme Court held that, pursuant to General Statutes § 49-17, the holder of a negotiable promissory note secured by a mortgage has standing to bring a foreclosure action against the maker of the note, even before assignment of the mortgage to the holder. The principal issue in this appeal is whether, as the trial court held, such a holder has standing to bring a foreclosure action even if the holder is described in the promissory note as an agent for a number of identified principals. We affirm the judgment of the court.

In an amended complaint filed on January 27, 2009, the plaintiff, Kennedy Funding, Inc., brought an action against the defendants, Greenwich Landing, LLC, and Mahmoud Wahba, for strict foreclosure of a mortgage. The mortgage was security for a promissory note executed by Greenwich Landing, LLC, and guaranteed by Wahba. On December 3, 2010, after title to the mortgaged property had passed to the plaintiff, the defendants filed a motion to dismiss the foreclosure action in which they alleged that the plaintiff lacked standing to bring the action because it was not the owner of the debt. The court denied the motion in a memorandum of decision dated July 12, 2011. The defendants have appealed.

The court’s memorandum of decision states the undisputed underlying facts. On February 27, 2007, Greenwich Landing, LLC, executed an $ 11 million promissory note seemed by an “open-end mortgage and security agreement” on property located at 88 South Water Street in Greenwich. Simultaneously, Wahba executed a guarantee agreement in favor of the plaintiff. On September 1, 2008, the defendants failed to make a mortgage payment that had become due. The plaintiff invoked the acceleration clause in the note, so that the entire obligation secured by the mortgage immediately became due. Thereupon, the plaintiff initiated proceedings for a judgment of strict foreclosure. On April 21, 2010, after the defendants had failed to redeem, the plaintiff recorded a certificate of foreclosure attesting to the passage of title to the property to the plaintiff. The plaintiff filed a motion for a deficiency judgment on April 30, 2010.

The defendants’ appeal relates to their December 3, 2010 motion, in which they maintained that the plaintiffs action should be dismissed because, in their view, the plaintiff lacked standing to bring the foreclosure action. The defendants argued that the plaintiffs initiation of suit was improper because, when it filed the foreclosure action, the plaintiff (1) did not own the mortgage and (2) was acting as an agent for disclosed principals.

In addition to contesting the merits of the defendants’ motion to dismiss, the plaintiff argued that the defendants’ motion was time barred because it had been filed more than eight months after title to the property had passed to the plaintiff. The court rejected the plaintiffs argument, concluding that, despite their delay, the defendants had standing to pursue their motion to dismiss because they were contesting the court’s subject matter jurisdiction to adjudicate the foreclosure action.

On the merits, however, the court ruled in favor of the plaintiff. Relying on this court’s decision in Chase Home Finance, LLC v. Fequiere, 119 Conn. App. 570, 576-77, 989 A.2d 606, cert. denied, 295 Conn. 922, 991 A.2d 564 (2010), and anticipating our Supreme Court’s holding in RMS Residential Properties, LLC v. Miller, supra, 303 Conn. 224, the court held that § 49-17 empowered the plaintiff, as the payee and holder of a negotiable instrument, to foreclose a mortgage securing the debt of the maker of the instrument. The court held further that general principles of agency law permit an agent to institute a lawsuit for the benefit of a disclosed principal “when the agent is a ‘holder’ of a negotiable instrument . . . .” Accordingly, the court denied the defendants’ motion to dismiss.

On appeal to this court, the defendants claim that the trial court improperly denied the motion to dismiss because the plaintiffs lack of standing deprived the trial court of subject matter jurisdiction over the foreclosure action. The defendants argue that the plaintiff had no standing to enforce the mortgage because (1) the plaintiff did not own the mortgage and (2) the plaintiff could not bring the foreclosure action in a representative capacity. The plaintiff renews its contention that the defendants’ motion to dismiss was untimely.

All but one of these issues are, however, foreclosed by our Supreme Court’s decision in RMS Residential Properties, LLC v. Miller, supra, 303 Conn. 224. Contrary to the plaintiffs contention that the defendants’ motion was untimely, the Supreme Court addressed a creditor’s right to foreclose a mortgage that was security for a promissory note as a question of standing, which can be raised at any time. Id., 228-29. Contrary to the defendants’ contention that the plaintiff, as holder of the note, had only a monetary cause of action, the Supreme Court held that § 49-17 gives a creditor who is a holder of a promissory note the right to foreclose a mortgage even before the creditor obtains an assignment of the mortgage. Id., 229-32.

The only issue yet to be decided, therefore, is the propriety of the court’s conclusion that the plaintiff, as the holder of the note, was entitled to enforce the note even though the note denominated the plaintiff “as agent for the lenders identified on Schedule A annexed hereto . . . .” The defendants argue that, as a mere collection agent, the plaintiff lacked standing to enforce the note or to foreclose the mortgage. They maintain that the court improperly held that the lenders had the right to authorize and did authorize the plaintiff to sue on their behalf. We disagree.

The defendants’ claim presents a question of law over which our review is plenary. Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 413, 35 A.3d 188 (2012). In support of their contention that the court’s ruling was improper, the defendants rely on Second Exeter Corp. v. Epstein, 5 Conn. App. 427, 429-30, 499 A.2d 429 (1985), cert. denied, 198 Conn. 802, 502 A.2d 932 (1986), in which this court held that a collection agent lacked the authority to sue a debtor in his own name. We are not persuaded that this precedent is dispositive in this case, in which the plaintiff agent is the payee and holder of a negotiable instrument.

The proper test for assessing the authority of the plaintiff to bring the foreclosure action in this case is stated in 2 Restatement (Third), Agency § 6.01, comment (d) (1), pp. 12-13 (2006). That comment provides in relevant part: “When an agent enters into a contract on behalf of a disclosed principal, the agent is not a party to the contract unless the agent and the third party so agree. . . . The manner in which an agent’s name appears in a contract is often relevant to establishing whether the agent agreed to become a party to the contract . . . .’’Id.

Applying this test to the undisputed facts of record in the present case demonstrates, as a matter of law, that the plaintiff was not merely a collection agent for the principal lenders. The record establishes that the principals designated the plaintiff as the payee and holder of a negotiable promissory note documenting the defendants’ indebtedness. By this designation, the principals unequivocally manifested their intention to authorize the plaintiff to exercise the rights that the law of negotiable instruments confers on the holder of a negotiable promissory note. See RMS Residential Properties, LLC v. Miller, supra, 303 Conn. 230-31. The Uniform Commercial Code, in General Statutes § 42a-3-301, codifies prior law that such a holder is “entitled to enforce” the instrument. Furthermore, by initiating the present litigation, the plaintiff unequivocally manifested its intention to undertake the responsibility assigned to it by the principal lenders. Cf. Thomas B. Olson & Associates, P.A. v. Leffert, Jay & Polglaze, P.A., 756 N.W.2d 907, 919 (Minn. App. 2008) (whether defendant lawyer had undertaken to be bound personally is a question of fact), review denied, 2009 Minn. LEXIS 15 (Minn. January 20, 2009).

On this record, the court properly determined that, although described as an agent, the plaintiff had the authority to enforce the defendants’ promissory note and the mortgage that was the security for that note. In light of RMS Residential Properties, LLC v. Miller, supra, 303 Conn. 224, the court’s other conclusions of law are equally unassailable.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 49-17 provides: “Foreclosure by owner of debt without legal title. When any mortgage is foreclosed by the person entitled to receive the money secured thereby but to whom the legal title to the mortgaged premises has never been conveyed, the title to such premises shall, upon the expiration of the time limited for redemption and on failure of redemption, vest in him in the same manner and to the same extent as such title would have vested in the mortgagee if he had foreclosed, provided the person so foreclosing shall forthwith cause the decree of foreclosure to be recorded in the land records in the town in which the land lies.”

       The plaintiff also maintains that the defendants are foreclosed from raising any defense to the plaintiffs foreclosure action because, on June 9, 2009, in an earlier hearing before the trial court, the defendants waived “all defenses, setoffs and counterclaims” to induce the plaintiff to consent to their motion to open the judgment of foreclosure and extend the law day. Because subject matter jurisdiction cannot be waived, this argument is unavailing.

       The defendants never disputed that the plaintiff was the holder of the note.

       We note that the trial court relied on an earlier version of the same test. See Restatement (Second), Agency § 364, pp. 143-44 (1958).

       General Statutes § 42a-3-301 provides: “Person entitled to enforce instrument. ‘Person entitled to enforce’ an instrument means (i) the holder of the instrument, (ii) a nonholder in possession of the instrument who has the rights of a holder, or (in) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to section 42a-3-309 or 42a-3-418 (d). A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.”


text:
    STATE OF CONNECTICUT v. WALTER REDDY III
    (AC 33324)
    DiPentima, C. J., and Bear and Bishop, Js.
    Argued February 6
    officially released April 24, 2012

      Joseph P. Secóla, for the appellant (respondent).

      Kathryn Ward Bare, assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Suzanne M. Vieux, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

DiPENTIMA, C. J.

The respondent, Walter Reddy III, appeals from the judgment of the trial court finding that he posed a risk of imminent personal injury to other individuals and ordering that his firearms be seized for a period of one year pursuant to General Statutes § 29-38c. On appeal, both the respondent and the state are in accord that the judgment of the court should be reversed. We agree with the parties and, accordingly, reverse the judgment of the trial court.

The following facts and procedural history are relevant to our discussion. On February 8, 2011, officers from the Weston police department applied for a risk warrant pursuant to § 29-38c to seize weapons and firearms in the custody of the respondent. The risk warrant application indicated that on February 4, 2011, Rand McNeil reported a “suspicious incident” involving the respondent that had occurred approximately one week earlier. Specifically, McNeil informed members of the Weston police department that the respondent had “recently brandished a pistol grip shotgun and made several disturbing comments while holding the shotgun . . . .” McNeil also stated that the respondent was “in financial distress” with a financial institution and had stated, “I would not want to be someone from the bank coming to my house.” (Internal quotation marks omitted.) McNeil also recounted the respondent’s statement that he would be “ready for the cops next time they come.” (Internal quotation marks omitted.) The application for the risk warrant concluded: “That based on the facts and circumstances [the respondent] made recent threats of violence toward others including law enforcement officials and bank personnel by his statements, and displayed reckless use and brandishing of a firearm.”

On February 8, 2011, the court issued the risk warrant, which was executed on February 14, 2011. Police officers seized the following items from the respondent: a pistol grip shotgun, stock and case, a revolver, assorted ammunition, an ammunition can, a red wire described as a fuse and two nonfunctioning grenades. Pursuant to § 29-38c (d), the court held a hearing on February 25, 2011. At the outset, the self-represented respondent indicated that he wanted to be represented by counsel. He stated that he had spoken with several attorneys but had not yet retained counsel. The prosecutor indicated that the state had issued subpoenas and had civilian witnesses and members of the Weston police department present to testify.

The court stated that pursuant to § 29-38c (d), it was required to hold a hearing within fourteen days of the execution of the warrant. The prosecutor noted her agreement with the court’s inteipretation of the statute and requested that the hearing go forward. After further argument, the court proceeded with the hearing. After considering the testimony, the court found by clear and convincing evidence that the respondent posed a risk of imminent personal injury to other individuals. It ordered that the items seized by the police department be held for a period of one year. On March 17, 2011, the respondent filed a motion to open and set aside the findings and judgment and requested a new hearing with counsel. The court denied this motion on March 21, 2011. This appeal followed.

I

Before reaching the merits of the respondent’s appeal, we must determine whether the case has been rendered moot due to the expiration of the court’s order. We consider this issue first because it implicates our subject matter jurisdiction. See State v. McElveen, 117 Conn. App. 486, 489, 979 A.2d 604 (2009), appeal dismissed, 302 Conn. 532, 29 A.3d 897 (2011). Guided by this court’s recent decision in In re Addie May Nesbitt, 124 Conn. App. 400, 5 A.3d 518, cert. denied, 299 Conn. 917, 10 A.3d 1051 (2010), we conclude that although this appeal is moot, it satisfies the requirements of the collateral consequences exception to the mootness doctrine.

“Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [a] court’s subject matter jurisdiction .... Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ... (2) that the interests of the parties be adverse ... (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant.” (Interna! quotation marks omitted.) Reveron v. Board of Firearms Permit Examiners, 123 Conn. App. 475, 477-78, 1 A.3d 1272 (2010). In the present case, the court’s order regarding the firearms belonging to the respondent has expired, and therefore this court cannot afford him any practical relief from the February 25, 2011 judgment. “[A]n actual controversy-must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.” (Internal quotation marks omitted.) In re Addie May Nesbitt, supra, 124 Conn. App. 404-405.

Our jurisprudence recognizes certain exceptions to the mootness doctrine. “[T]he court may retain jurisdiction when a litigant shows that there is a reasonable possibility that prejudicial collateral consequences will occur. . . . [T]o invoke successfully the collateral consequences doctrine, the litigant must show that there is a reasonable possibility that prejudicial collateral consequences will occur. Accordingly, the litigant must establish these consequences by more than mere conjecture, but need not demonstrate that these consequences are more probable than not. This standard provides the necessary limitations on justiciability underlying the mootness doctrine itself. Where there is no direct practical relief available from the reversal of the judgment . . . the collateral consequences doctrine acts as a surrogate, calling for a determination whether a decision in the case can afford the litigant some practical relief in the future.” (Internal quotation marks omitted.) Id., 405.

In the In re Addie May Nesbitt case, which also involved a risk warrant to search and seize firearms pursuant to § 29-38c, we concluded that Nesbitt’s appeal satisfied the collateral consequences exception, enabling this court to review the merits of the appeal even after the expiration of the court’s order seizing Nesbitt’s firearms. We explained: “The respondent [argues] that collateral consequences of the trial court’s order exist because the notice reinstating her pistol permit specifically indicated that further incidents that call into question her suitability to hold a permit could lead to the permanent revocation of her pistol permit. She further argues that collateral consequences exist due to the notification to the department of mental health and addiction services of the court’s order. We agree with the respondent.” Id. Similar consequences exist in the present case as well. See General Statutes § 29-38c (d). We conclude, therefore, that the respondent has satisfied the requirements of the collateral consequences doctrine and that we have subject matter jurisdiction over the present appeal.

II

On appeal, the parties agree that the court improperly construed § 29-38c. The parties differ, however, as to the specific avenue that this court should use to reverse the judgment of the trial court. The respondent argues that the fourteen day time frame to hold a hearing as set forth § 29-38c (d) is directory rather than mandatory. Specifically, he contends that the “time period is one of convenience, not substance . . . [and] ‘is designed to secure order, system and dispatch in the proceedings’ . . . .’’He therefore claims that the court improperly construed § 29-38c (d) to require that the hearing be held within fourteen days of the execution of the risk warrant. The state counters that the fourteen day provision of § 29-38c (d) is mandatory but subject to waiver. We agree with the state.

As a preliminary matter, we identify our standard of review and the legal principles relevant to our analysis of whether § 29-38c (d) is directory or mandatory. Because this issue requires us to interpret § 29-38c (d), our review is plenary. Stewart v. Watertown, 303 Conn. 699, 710, 38 A.3d 72 (2012); see also Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 18, 848 A.2d 418 (2004) (issue of whether General Statutes § 52-102b [a] established mandatory or directory time limitation was one of statutory interpretation subject to plenary review).

“When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case .... In seeking to determine that meaning . . . [General Statutes] § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative histoiy and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter .... We recognize that terms in a statute are to be assigned their ordinary meaning, unless context dictates otherwise . . . .” (Internal quotation marks omitted.) State v. Miscellaneous Fireworks, 132 Conn. App. 679, 684-85, 34 A.3d 992 (2011); see also Franklin v. Superior Casting, 302 Conn. 219, 226, 24 A.3d 1233 (2011).

“The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience. . . . If it is a matter of substance, the statutory provision is mandatory. ... If, however, the . . . provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory .... Definitive words, such as must or shall, ordinarily express legislative mandates of nondirectory nature. ... As we recently noted, the word shall creates a mandatory duty when it is juxtaposed with [a] substantive action verb.” (Citations omitted; internal quotation marks omitted.) Wiseman v. Armstrong, 295 Conn. 94, 100-101, 989 A.2d 1027 (2010); see also Butts v. Bysiewicz, 298 Conn. 665, 676, 5 A.3d 932 (2010).

Section 29-38c (d) provides in relevant part: “Not later than fourteen days after the execution of a warrant under this section, the court for the geographical area where the person named in the warrant resides shall hold a hearing to determine whether the seized firearms should be returned to the person named in the warrant or should continue to be held by the state. . . .” (Emphasis added.) The statute later notes that the court “may order" that seized firearms remain in the custody of the state for a period not to exceed one year. (Emphasis added.) General Statutes § 29-38c (d). This hearing provides an opportunity to have the firearms returned if the state fails to sustain its burden of establishing that the individual poses a risk of imminent personal injury to himself or herself or to other individuals by clear and convincing evidence.

At the outset, we note that the use of the word “shall” in the statutes generally suggests a mandatory obligation. See Stewart v. Tunxis Service Center, 237 Conn. 71, 78, 676 A.2d 819 (1996). Furthermore, the statutory language at issue juxtaposes “shall” with the substantive action verb “hold” and thus gives rise to a duty to act, an indication of a mandatory provision. Compare Wiseman v. Armstrong, supra, 295 Conn. 101; cf. C. R. Klewin Northeast, LLC v. Fleming, 284 Conn. 250, 263, 932 A.2d 1053 (2007) (noting statutory language did not juxtapose “shall” with substantive verb and therefore did not indicate mandatory obligation). Additionally, we note that a hearing is necessary in order to effectuate the purpose of the statute, that is, to seize firearms only from a person who is shown to pose a risk of imminent personal injury to himself, herself or other individuals. See Wiseman v. Armstrong, supra, 101 (polling of jury is substantive right established by rule of practice and imposes mandatory duty on trial court). Moreover, the legislature used the words “shall” and “may” in the same subsection. “[W]hen the legislature opts to use the words ‘shall’ and ‘may’ in the same statute, they ‘must then be assumed to have been used with discrimination and a full awareness of the difference in their ordinary meanings.’ ” Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn. 20. Finally, the statute provides that a hearing shall be held not later than fourteen days after the execution of the warrant. The use of the negative terminology indicates a mandatory action. State v. Tabone, 292 Conn. 417, 449-50, 973 A.2d 74 (2009) (Schaller, J., concurring in part and dissenting in part); see also Stewart v. Tunxis Service Center, supra, 78. For these reasons, and to ensure that those individuals whose firearms have been seized are afforded the requisite due process, we conclude that § 29-38c (d) contains a mandatory requirement that a hearing be held within fourteen days of the execution of the risk warrant.

We now turn to the question of whether the court properly concluded that § 29-38c (d) is not subject to waiver. Our Supreme Court has stated: “Mandatory time limitations . . . must be complied with absent an equitable reason for excusing compliance, including waiver or consent by the parties.” (Emphasis in original; internal quotation marks omitted.) Pedro v. Miller, 281 Conn. 112, 118, 914 A.2d 524 (2007); Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn. 35-36; Stewart v. Tunxis Service Center, supra, 237 Conn. 80-81; Schreck v. Stamford, 72 Conn. App. 497, 499-500, 805 A. 2d 776 (2002). We conclude, therefore, that the court improperly concluded that § 29-38c absolutely required that the hearing be held within fourteen days of the execution of the risk warrant.

The respondent also argues that because the record clearly demonstrates his intent to waive the fourteen day time period contained in § 29-38c (d), this court should make a finding of waiver. At the outset of the hearing before the trial court, the respondent indicated his desire to be represented by counsel and that, although he had made certain inquiries, he had been unable to obtain an attorney. Additionally, following the court’s ruling, the respondent moved to open and set aside the judgment. In that motion, he argued that the denial of a continuance to obtain counsel “worked a substantial injustice.”

“Waiver involves an intentional relinquishment of a known right. . . . There cannot be a finding of waiver unless the party has both knowledge of the existence of the right and intention to relinquish it. . . . Waiver may be inferred from the circumstances if it is reasonable so to do. . . . Whether conduct constitutes a waiver is a question of fact . . . [and is] dependent on all of the surrounding circumstances and the testimony of the parties.” (Internal quotation marks omitted.) Esposito v. DiGennaro, 120 Conn. App. 627, 630, 992 A.2d 1230 (2010); see also Lehn v. Marconi Builders, LLC, 120 Conn. App. 459, 464, 992 A.2d 1137 (2010). Although waiver need not be express and may be implied from the acts or conduct of party, it nonetheless remains a question for the trier of fact. Banks Building Co., LLC v. Malanga Family Real Estate Holding, LLC, 102 Conn. App. 231, 239, 926 A.2d 1 (2007); see also Ridgefield v. Eppoliti Realty Co., 71 Conn. App. 321, 340, 801 A.2d 902, cert. denied, 261 Conn. 933, 806 A.2d 1070 (2002). This court’s function is not to make factual determinations. See LeBlanc v. New England Raceway, LLC, 116 Conn. App. 267, 286, 976 A.2d 750 (2009) (“The factfinding function is vested in the trial court with its unique opportunity to view the evidence . . . 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.” [Internal quotation marks omitted.]). We decline the respondent’s invitation to make the initial finding of waiver in this case.

The judgment is reversed and the case remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       General Statutes § 29-38c (a) provides: “Upon complaint on oath by any state’s attorney or assistant state’s attorney or by any two police officers, to any judge of the Superior Court, that such state’s attorney or police officers have probable cause to believe that (1) a person poses a risk of imminent personal injury to himself or herself or to other individuals, (2) such person possesses one or more firearms, and (3) such firearm or firearms are within or upon any place, thing or person, such judge may issue a warrant commanding a proper officer to enter into or upon such place or thing, search the same or the person and take into such officer’s custody any and all firearms. Such state’s attorney or police officers shall not make such complaint unless such state’s attorney or police officers have conducted an independent investigation and have determined that such probable cause exists and that there is no reasonable alternative available to prevent such person from causing imminent personal injury to himself or herself or to others with such firearm.”

       According to the application for a risk warrant, McNeil ultimately declined to provide a written statement to the police because he feared retaliation from the respondent, whom he described as a “dangerous guy.” McNeil also considered himself to be a friend of the respondent.

       General Statutes § 29-38c (d) provides: “Not later than fourteen days after the execution of a warrant under this section, the court for the geographical area where the person named in the warrant resides shall hold a hearing to determine whether the seized firearms should be returned to the person named in the warrant or should continue to be held by the state. At such hearing the state shall have the burden of proving all material facts by clear and convincing evidence. If, after such hearing, the court finds by clear and convincing evidence that the person poses a risk of imminent personal injury to himself or herself or to other individuals, it may order that the firearm or firearms seized pursuant to the warrant issued under subsection (a) of this section continue to be held by the state for a period not to exceed one year, otherwise the court shall order the seized firearm or firearms to be returned to the person named in the warrant. If the court finds that the person poses a risk of imminent personal injury to himself or herself or to other individuals, it shall give notice to the Department of Mental Health and Addiction Services which may take such action pursuant to chapter 319i as it deems appropriate.”

       Our Supreme Court has stated that “[d]efmitive words, such as must or shall, ordinarily express legislative mandates of a nondirectory nature. . . . We have noted, however, that the use of the word shall, though significant, does not invariably establish a mandatory duty.” (Citations omitted; internal quotation marks omitted.) State v. Pare, 253 Conn. 611, 623, 755 A.2d 180 (2000); see also Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 445, 685 A.2d 670 (1996).

       We note that the respondent has failed to provide this court with a signed transcript of the trial court’s oral decision. Practice Book § 64-1 (a) provides in relevant part: “If oral, the decision shall be recorded by a court reporter and, if there is an appeal, the trial court shall create a memorandum of decision for use in the appeal by ordering a transcript of the portion of the proceedings in which it stated its oral decision. The transcript of the decision shall be signed by the trial judge and filed in the trial court clerk’s office.


author: SHELDON, J.

text:
    EMMA ATKINSON v. LORRAINE SANTORE
    (AC 33416)
    Robinson, Sheldon and Bishop, Js.

      Argued January 31
    officially released April 24, 2012

      Nicole L. Augenti, with whom, on the brief, was James O. Gaston, for the appellant (plaintiff).

      Joseph R. Grippe, for the appellee (defendant).
   Opinion

SHELDON, J.

This case involves a dispute between a homeowner and her children’s babysitter concerning an incident in which the babysitter, while caring for the children, claimed that she was potentially exposed to the rabies virus due to her contact with the homeowner’s dogs after she found them in the vicinity of a rabid raccoon in the homeowner’s yard. The plaintiff, Emma Atkinson, brought this action against the defendant, Lorraine Santore, under General Statutes § 22-357, commonly known as the dog bite statute, claiming that the defendant was strictly hable for such potential exposure and its consequences, including the cost of and the pain associated with the resulting administration to her of antirabies injections. Both the plaintiff and the defendant subsequently filed motions for summary judgment. In her motion, the defendant claimed that she could not be held hable under § 22-357 because her dogs had not “do[ne] any damage” to the plaintiff, within the meaning of the statute. On this score, she argued, under Granniss v. Weber, 107 Conn. 622, 141 A. 877 (1928), and its progeny, that the statute imposes strict liability on dog owners only for damage resulting from the “active conduct” of their dogs, which the Gran-niss court had described as “conduct of the dog [that] was voluntary and either vicious or mischievous, instead of involuntary or innocent . . . .” Id., 630. Employing this analysis, the trial court granted the defendant’s motion upon finding that the only conduct by which her dogs might be claimed to have exposed the plaintiff to the rabies virus was entirely passive, and, thus, completely innocent and involuntary rather than volitional, vicious or mischievous.

On appeal, the plaintiff claims error in the court’s granting of the defendant’s motion for summary judgment on two grounds. First, she argues that the court’s analysis of the statute’s requirements is too restrictive because it inappropriately limits dog owners’ strict liability thereunder to damage resulting from the active or affirmative conduct of their dogs. Second, she argues that even if the court’s statutory analysis is correct, there is, on this record, a genuine issue of material fact as to whether her potential exposure to the rabies virus resulted from the defendant’s dogs’ active or affirmative conduct towards the rabid raccoon. For the following reasons, we disagree and thus affirm the judgment of the trial court.

We first set forth the applicable standard of review. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.” (Internal quotation marks omitted.) SS-II, LLC v. Bridge Street Associates, 293 Conn. 287, 293-94, 977 A.2d 189 (2009). “Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... it [is] incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists. The presence ... of an alleged adverse claim is not sufficient to defeat a motion for summary judgment.” (Citations omitted; internal quotation marks omitted.) Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 247, 618 A.2d 506 (1992).

“On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Crystal Lake Clean Water Preservation Assn. v. Ellington, 53 Conn. App. 142, 147, 728 A.2d 1145, cert. denied, 250 Conn. 920, 738 A.2d 654 (1999). Because the trial court rendered judgment for the defendant as a matter of law, “our review is plenary and 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.” (Internal quotation marks omitted.) Id.

In reaching its decision, the trial court found the following undisputed facts. “On July 17, 2007, the plaintiff was babysitting for the defendant’s two children at the defendant’s home in Newtown. The plaintiff’s affidavit states that the defendant’s dogs ‘came in contact with’ a rabid raccoon. In her deposition testimony, the plaintiff explained that when she went outside to bring the dogs in the house, she observed the dogs near the end of the defendant’s driveway. The dogs were five to ten feet from a raccoon that was lying, unmoving but apparently alive, on the grass. The plaintiff did not observe the dogs have any actual physical contact with the raccoon nor is she aware that any other person witnessed such contact. The plaintiff did not observe any scratches, blood or other marks on the dogs. To retrieve the dogs, the plaintiff walked over to where the dogs were standing, five to ten feet from the raccoon, and corralled them into the house. While fetching the dogs and afterwards, the dogs acted normally and were friendly to the plaintiff. At no time did the dogs bite, attack, scratch, menace or otherwise directly harm the plaintiff. The raccoon was later tested and confirmed to be rabid. The plaintiff did not contract rabies but received rabies shots on the advice of her pediatrician. The plaintiff did not present any evidence that the dogs contracted rabies, although they did receive rabies shots.”

The plaintiff first argues that the trial court erred by reading § 22-357 to restrict a dog owner’s strict liability to damage resulting from the dog’s active or affirmative conduct. She urges this court to interpret the statutory phrase, “does any damage”; General Statutes § 22-357; to mean proximately causes any damage, without any limitation as to how such damage is done. We disagree.

Although the language of the statute contains no express requirement that a dog’s conduct be active or affirmative in order for its owner to be held strictly liable for damage resulting from it, our courts have long held that the statute applies only to a dog’s volitional conduct that is either vicious or mischievous rather than innocent or involuntary. See Granniss v. Weber, supra, 107 Conn. 630. This limitation is rooted in the purpose of the statute, which is to assign full responsibility for the special dangers arising from the natural behavior of dogs to those who expose others to such special dangers by owning or keeping dogs, rather than to innocent persons who encounter such dogs and thereby suffer damage to their persons or property. At common law before 1798, dogs were regarded as a base or inferior form of inherently dangerous property, which owners kept and maintained at their peril. See Woolf v. Chalker, 31 Conn. 121, 127, 133 (1862). The low status of dogs compared to other domesticated animals was based on their nonutility as a food source, their proneness to contracting and spreading the deadly rabies virus, and their natural tendency to engage in vicious behavior, particularly biting, and mischievous behavior, typically involving the destruction of property. Id., 127-28. In light of the latter factor, in particular, the legislature sought to impose strict liability for all damage predictably resulting from dogs’ vicious or mischievous behavior on those who, by owning or keeping them, expose others to the dangers of such aggressive behavior while seeking its benefits for their own self-protection. Id., 132.

Consistent with this purpose, the Granniss court described the scope of dog owners’ and keepers’ liability under the statute as including all damage caused by the vicious or mischievous conduct of their dogs but excluding all damage caused by the dogs’ innocent or involuntary conduct. Granniss v. Weber, supra, 107 Conn. 630. Strict liability appropriately is imposed on dog owners and keepers for damage caused by the volitional and vicious or mischievous conduct of their dogs because it is reasonably foreseeable that dogs as a species will engage in such inherently dangerous behavior. Strict liability is not imposed, by contrast, for damage caused by the involuntary or innocent behavior of dogs because no special risk of harm fore-seeably arises from such passive, nonaggressive behavior. In sum, consistent with Granniss and the numerous Superior Court decisions that have followed it, we agree with the trial court that strict liability under § 22-357 does not extend to damage caused by a dog’s merely passive, and, thus, innocent or involuntary, behavior.

The plaintiff also claims that even if the court employed the proper legal analysis in evaluating the defendant’s statutory liability, summary judgment was improper on the facts here presented because there is a genuine issue of material fact as to whether the plaintiff’s potential exposure to rabies resulted from the defendant’s dogs’ affirmative conduct. We disagree.

In her complaint, the plaintiff initially claimed that the dogs were “enjoined” with the raccoon, suggesting that the dogs had made physical contact with the raccoon and grappled with it. Later, however, in the personal affidavit attached to her motion for summary judgment, the plaintiff averred more generally, without accompanying explanation, that the dogs “had contact” with the raccoon. When pressed on this point at oral argument before this court, the plaintiffs counsel conceded that the plaintiff had not witnessed any physical contact between the dogs and the raccoon. Counsel contended, nonetheless, that such physical contact could be inferred. When asked how such an inference could be drawn from the evidence here presented, counsel responded that the dogs were found wandering around a portion of the defendant’s property that they typically did not enter, and, thus, they could have been “sniffing around or investigating” the raccoon. Counsel also speculated, without citing any supporting evidence, that the dogs could “have caused” the raccoon’s injuries.

“Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... it [is] incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists.” (Citations omitted; internal quotation marks omitted.) Wadia Enterprises, Inc. v. Hirschfeld, supra, 224 Conn. 247. Demonstrating a genuine issue of material fact “requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred.” (Internal quotation marks omitted.) Martinez v. Southington Metal Fabricating Co., 101 Conn. App. 796, 799, 924 A.2d 150, cert. denied, 284 Conn. 930, 934 A.2d 246 (2007). An inference that is based on speculation and is unsupported by the evidence is insufficient to raise a genuine issue of material fact.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 22-357 provides in relevant part: “If any dog does any damage, to either the body or property of any person, the owner or keeper, or, if the owner or keeper is a minor, the parent or guardian of such minor, shall be liable for such damage, except when such damage has been occasioned to the body or property of a person who, at the time such damage was sustained, was committing a trespass or other tort, or was teasing, tormenting or abusing such dog. . . .”

       The court denied the plaintiffs motion for summary judgment.

       The plaintiff couches her argument in a claim that the court improperly created and applied a three-pronged standard to establish liability under § 22-357. More specifically, the plaintiff claims that the requisite three prongs were as follows: “(1) some kind of volitional act on the part of the dog; (2) the dog does an affirmative act; and (3) that said affirmative act was vicious or mischievous . . . .” We interpret these three prongs to amount to a claim that the court improperly included in its analysis a requirement of affirmative conduct by the dogs that was either vicious or mischievous.

       In 1798, the first version of § 22-357 became law. See Woolf v. Chalker, supra, 31 Conn. 133.

       As a strict liability statute, § 22-357 imposes no requirement that the owner had scienter as to his or her dog’s propensity to engage in such behavior. “ [The] principal purpose and effect [of the statute] was to abrogate the common-law doctrine of scienter as applied to damage by dogs to persons and property, so the liability of the owner or keeper became no longer dependent upon [the owner’s] knowledge of the dog’s ferocity or mischievous propensity; literally construed the statute would impose an obligation on [the owner] to pay for any and all damage the dog may do of its own volition.” Granniss v. Weber, supra, 107 Conn. 625.

       See, e.g., Soherp v. Facius, Superior Court, judicial district of Middlesex, Docket No. CV-03-0100630-S (November 12, 2004) (rendering judgment in favor of defendant and concluding that dog was passive and nonviolent and was not directing any hostility, threatening, attacking or menacing behavior toward plaintiff); Moulton v. Coffee & More, LLC, Superior Court, judicial district of Hartford, Docket No. CV-10-6006205-S (May 12, 2010) (granting defendant’s motion to strike, concluding that complaint alleged conduct that was involuntary or innocent, as opposed to voluntary and either vicious or mischievous and noting that “dofingj” damage involved affirmative act by dog); cf. Baclaski v. D’Alessio, Superior Court, judicial district of Tolland, Docket No. CV-06-5000697-S (February 23, 2007) (denying defendant’s motion for summary judgment and determining that dog engaged in voluntary act when it wandered over and fell asleep in entranceway and plaintiff was injured after tripping over it).


author: PER CURIAM.

text:
    MICHAEL J. WARNER v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT, ET AL.
    (AC 33329)
    Alvord, Bear and West, Js.

      Argued February 8
    officially released April 24, 2012

      Krista D. O’Brien, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Philip M. Schulz, assistant attorney general, for the appellant (named defendant).

      Michael J. Warner, pro se, the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant administrator of the Unemployment Compensation Act appeals from the judgment of the trial court reversing the decision of the employment security review board (board) denying benefits to the plaintiff, Michael J. Warner. On appeal, the defendant claims that the trial court improperly elevated the findings of fact of the appeals referee over those of the board. The board determined that the plaintiff was not eligible for benefits because he was discharged for wilful misconduct after he failed to retreat from a workplace fight. Because the court exceeded its limited role in reviewing the determination of the board, we reverse the judgment.

The following facts and procedural history as found by the board are relevant to our disposition of the defendant’s appeal. The plaintiff worked at Acura by Executive (the dealership) detailing cars. The plaintiff had a tumultuous relationship with another employee, Jack Roscoe. On December 23, 2009, Gary Gargano, the service manager at the dealership, informed the plaintiff that he might need to work the following day to detail a car. Roscoe commented that someone other than the plaintiff could do a better job. The plaintiff found the comment offensive and asked Roscoe to step outside to talk about the matter. Roscoe agreed to talk to the plaintiff outside of the dealership and removed his glasses before he left.

The plaintiff did not intend to fight Roscoe, but he knew there would be a “ ‘real confrontation’ ” when Roscoe removed his glasses. Both the plaintiff and Roscoe walked past Gargano on their way out. Once outside, Roscoe pushed the plaintiff, and he pushed Roscoe back. The plaintiff believed that Roscoe was about to punch him so he punched Roscoe first, knocking him to the ground. Both men subsequently were arrested after the police were called. The dealership terminated the plaintiffs employment the following day for violation of its zero tolerance policy for violence. Roscoe resigned his employment with the dealership.

The plaintiff applied for unemployment benefits, but the dealership contested his entitlement to those benefits because it claimed that he was discharged for wilful misconduct and, therefore, was not eligible. In a letter mailed January 19,2010, the defendant denied the plaintiff benefits due to his determination that the plaintiffs termination was based on his deliberate misconduct in the course of employment in wilful disregard of his employer’s interest. The plaintiff timely appealed the decision on February 5, 2010, and an appeals referee heard the appeal de novo on March 19, 2010. The appeals referee reversed the defendant’s determination, noting that the board does not consider fighting to be wilful misconduct if the claimant has shown that his “actions were justifiably or reasonably provoked by certain conduct of the other employee, or the claimant was not the aggressor and acted in self-defense . . . .” The appeals referee determined that the plaintiffs conduct was not disqualifying.

Following the decision of the appeals referee, the dealership timely appealed to the board on April 14, 2010. In a decision mailed June 28, 2010, the board adopted the referee’s finding of fact as its own, except it added the following sentence to the referee’s finding of fact number 6: “At this time the claimant knew that it would be a real confrontation” in reference to the point at which Roscoe removed his glasses before stepping outside to join the plaintiff. (Internal quotation marks omitted.) The board also augmented the referee’s finding of fact number 14 as follows: “On December 28,2009, the employer discharged the claimant because he violated the employer’s zero tolerance policy for violence.” (Internal quotation marks omitted.) Based on these additions to the referee’s findings of fact, the board determined that the plaintiff knew that a physical altercation was about to ensue, and, therefore, he had a duty to retreat. Because the plaintiff failed to retreat, the board concluded that his participation in the fight constituted wilful misconduct. The board reversed the decision of the appeals referee on this ground and denied the plaintiff benefits.

The plaintiff did not file a motion to correct the board’s findings but, instead, appealed to the Superior Court. The court reviewed the record and summarily reversed the decision of the board, adopting the findings of fact and conclusions of law of the appeals referee. The court stated that the appeals referee was in a better position to find the facts because he was physically able to hear the testimony and to assess the credibility of the plaintiff before issuing his decision. The court found this point dispositive. The defendant then appealed to this court.

The defendant claims that the court improperly elevated the findings of the appeals referee over the findings of the board when it determined that the appeals referee was better able to assess the credibility of the plaintiff. We agree.

A trial court’s review of the findings of the board is circumscribed. “To the extent that an administrative appeal, pursuant to General Statutes § 31-249b, concerns findings of fact, a court is limited to a review of the record certified and filed by the board of review. The court must not retry the facts nor hear evidence. . . . [The court] cannot review the conclusions of the board when these depend upon the weight of the evidence and the credibility of witnesses.” (Internal quotation marks omitted.) Claudio v. Administrator, Unemployment Compensation Act, 134 Conn. App. 105, 110-11, 39 A.3d 1135 (2012). “In the absence of a motion to correct the finding of the board, the court is bound by the board’s finding.” Ray v. Administrator, Unemployment Compensation Act, 133 Conn. App. 527, 533, 36 A.3d 269 (2012).

The plaintiff disputes the board’s finding that he said that he knew it would be a “ ‘real confrontation’ ” when Roscoe removed his glasses. In fact, he claims that he did not even know that Roscoe removed his glasses until after the fight had occurred. Although this court is sensitive to the concerns of the self-represented plaintiff, the plaintiff did not file a motion to correct the findings of the board. In the absence of such a motion to correct the board’s findings, the court was bound by the findings as certified to it by the board. The board found that the plaintiff knew that there would be a real confrontation because Roscoe removed his glasses and that the plaintiff had an opportunity to retreat from the fight but failed to do so in violation of the dealership’s zero tolerance policy for violence. Therefore, the board determined that the dealership terminated the plaintiff for engaging in wilful misconduct and that he was not entitled to benefits. Neither the trial court nor this court has the authority to simply disregard the findings of the board and, instead, base a decision on facts not certified to it when no motion to correct was filed.

The judgment of the trial court is reversed and the case is remanded to that court with direction to affirm the decision of the employment security review board.

       The plaintiff’s employer, Acura by Executive, was also named as a defendant but was a nonappearing party at trial. We therefore refer in this opinion to the administrator of the Unemployment Compensation Act as the defendant.

       General Statutes § 31-236 (a) (2) (B) provides in relevant part that an individual is not eligible for unemployment compensation benefits if “in the opinion of the administrator, the individual has been discharged . . . [for] ■wilful misconduct in the course of the individual’s employment . . . Section 31-236 (a) (16) provides in relevant part: “[WJilful misconduct means deliberate misconduct in wilful disregard of the employer’s interest, or a single knowing violation of a reasonable and uniformly enforced rule or policy of the employer, when reasonably applied, provided such violation is not a result of the employee’s incompetence . . . (Internal quotation marks omitted.) See Regs., Conn. State Agencies § 31-236-26.