author: SCHALLER, J.

text:
    MARY CLARK v. RICHARD CLARK
    (AC 19087)
    Poti, Schaller and O’Connell, Js.

      Argued May 31
    officially released November 6, 2001

      Robert S. Kolesnik, for the appellant (plaintiff).

      David J. Bozzuto, with whom, on the brief, was Elizabeth A. Bozzuto, for the appellee (defendant).
   Opinion

SCHALLER, J.

This is an appeal from a postjudgment modification rendered in a dissolution of marriage action. The plaintiff, Mary Clark, appeals from the order of the trial court partially granting her motion for modification of the alimony order. The plaintiff claims on appeal that the court improperly (1) determined that her alimony could not be modified on the basis of the “substantial change [of] circumstances” ground provided in General Statutes § 46b-86 (a), (2) excluded testimony regarding the grounds for the breakdown of the parties’ marriage, (3) found that at the time of the dissolution, the parties had anticipated and acknowledged that she had a chronic health problem that in time might adversely affect her ability to earn the income that she was receiving at the time of the dissolution, and (4) ordered that the defendant’s alimony obligation would terminate once she reaches sixty-two years of age. We affirm the order of the trial court modifying the judgment.

The following facts and procedural history are relevant to our disposition of the plaintiffs appeal. The plaintiff and the defendant, Richard Clark, were married in Connecticut on May 28, 1966. The court dissolved their marriage on February 9, 1979, on the ground of irretrievable breakdown. The final dissolution decree incorporated the terms of a written stipulation concerning support, alimony, disposition of property, custody of the parties’ two minor children and all other financial matters. The stipulation provided, inter alia, that the defendant would pay the plaintiff alimony in the amount of $80 per week, that such payments would cease if she should remarry or cohabitate with a man to whom she is not married and that the alimony obligation would be reduced to $1 per year upon the youngest child’s reaching the age of eighteen.

Paragraph seven of the stipulation further states: “The plaintiff shall have the right to ask for an increase in the $1.00 per year alimony in the event she is unable to work because of ill health or if she loses her employment through no fault of her own and cannot find employment in a profession or any other job which would reasonably compensate her or if she secures employment for substantially less money than she is now making.” Some time after the judgment of dissolution was rendered, the parties’ youngest child attained the age of eighteen years, and the plaintiffs alimony payments were reduced to $1 per year pursuant to the stipulation.

By motion dated May 23, 1997, the plaintiff initiated the proceeding that is the subject of this appeal, requesting modification of the alimony award on the ground that she is unable to work because of ill health. Following the modification hearing, the court made the following finding: “At the time of the dissolution, the parties, to their credit, anticipated and acknowledged the fact that the plaintiff had a chronic health problem which, in time, might adversely affect her ability to earn the income that she was receiving at the time of the dissolution. They expressly provided that if her health did someday prevent her from working, it would be the basis to revisit the alimony award.” The court further found that “it is beyond the jurisdiction of this court to require the defendant, some twenty years after the judgment, to begin to provide health insurance or other benefits not included in the original judgment.” Finally, the court found that the plaintiffs unpaid medical expenses that are related to her illness are “within the contemplation of the parties’ agreement to modify the judgment.”

The plaintiff was employed as a registered nurse from approximately 1963 to September 9, 1996. In 1996, the plaintiffs peak annual gross income from her primary employer was approximately $50,933, and she had a net income of approximately $37,168. She also worked part time at two schools. The plaintiff retired from her primary place of employment on September 9, 1996, and has not worked anywhere else since that date. As a result of that change in employment status, the plaintiffs income as of the time of the hearing on her motion for modification was $1216 per month in social security benefits and $1323.68 from a disability policy. The plaintiff also was entitled to $249 per month from an annuity policy. The court determined that the plaintiffs estimated income without the annuity was $30,480. The court further restated that diminution in income as a $6688 reduction in annual income, reducible to $3688 if she invaded her annuity at the rate of $250 per month. Additionally, the court noted in its memorandum of decision that as a result of her illness, the plaintiff had incurred added medical expenses that her insurance would not cover.

The court increased the alimony order from $1 per year to $9000 per year-, payable at the rate of $750 per month, retroactive to the date of the filing of the motion. The court specifically based its ruling solely on a ground contained in the stipulation. Additional facts will be set forth as necessary.

I

The plaintiff first claims that the court improperly determined that the her alimony could not be modified on the basis of the “substantial change [of] circumstances” ground provided in § 46b-86. We are not persuaded.

“Before addressing any of the [plaintiffs] claims, we note that our standard of review in domestic relations cases is limited. The well settled standard of review in domestic relations cases is that this court 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.) Porter v. Porter, 61 Conn. App. 791, 795, 769 A.2d 725 (2001).

“General Statutes § 46b-86 (a) provides in relevant part: Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support . . . may at any time thereafter be . . . modified by said court upon a showing of a substantial change in the circumstances of either party . . . .” (Emphasis in original; internal quotation marks omitted.) Way v. Way, 60 Conn. App. 189, 195, 758 A.2d 884, cert. denied, 255 Conn. 901, 762 A.2d 910 (2000). “The issue before us is whether the [plaintiffs] motion should have been considered pursuant to [General Statutes § 46b-86] or pursuant to the judgment.” DeMaria v. DeMaria, 47 Conn. App. 729, 732, 707 A.2d 741 (1998), rev’d on other grounds, 247 Conn. 715, 724 A.2d 1088 (1999).

The plaintiff claims that § 46b-86 establishes the grounds for modification of alimony. Specifically, she argues that “[o]nce a trial court determines that there has been a substantial change in the financial circumstances of one of the parties, the same criteria that determines an initial award of alimony and support are relevant to the question of modification.” Hardisty v. Hardisty, 183 Conn. 253, 258-59, 439 A.2d 307 (1981). The plaintiff argues that the parties essentially stipulated to what would constitute a change in the plaintiffs circumstances, thus triggering the application of the criteria set forth in General Statutes § 46b-82. Among those criteria is that the court “shall consider . . . the causes for the . . . dissolution of the marriage . . . .” General Statutes § 46b-82. The plaintiff apparently believes that had the court considered that criterion, it would have further increased the alimony order.

The defendant argues that the court had no authority to modify the alimony award on the basis of the “substantial change of circumstances” ground provided in § 46b-86. Specifically, the defendant argues that the plaintiff failed to raise § 46b-86 (a) as a ground for modification and relied exclusively on one of the grounds in the parties’ stipulation.

“[General Statutes § 46b-86] is a separate and independent statutory basis for the modification of alimony and is a claim which must be raised in a written motion by the party seeking to modify the award of periodic alimony.” (Internal quotation marks omitted.) Mihalyak v. Mihalyak, 30 Conn. App. 516, 520, 620 A.2d 1327 (1993).

The plaintiff did not seek to modify the alimony on the basis of § 46b-86 (a). Rather, she sought to modify the alimony solely on the basis of a provision in the decree. See id., 520-21. Specifically, the plaintiff alleged in her motion for modification of alimony, inter alia, that she had been “awarded One ($1.00) Dollar per year alimony and the right to request an increase in the $1.00 per year alimony in the event she is unable to work because of ill health,” and that she was “unable to work because of ill health and the current alimony order should be modified accordingly.”

Under those circumstances, it is clear that the plaintiff was seeking relief exclusively under the terms of the stipulated judgment of dissolution and that the court correctly determined the basis for modification. The court did not abuse its discretion in holding that the provisions of § 46b-86 do not apply in this case.

II

The plaintiff next claims that the court improperly excluded testimony regarding the grounds for the breakdown of the parties’ marriage. We disagree.

We begin our analysis with a statement of the appropriate standard of review. “Our standard of review for evidentiary matters allows the trial court great leeway in deciding the admissibility of evidence. The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done.” (Internal quotation marks omitted.) Gilliard v. Van-Court Property Management Services, Ltd., 63 Conn. App. 637, 641, 777 A.2d 745 (2001).

“ ‘In general the same sorts of [criteria] are relevant in deciding whether the decree may be modified as are relevant in making the initial award of alimony.’ ” Shearn v. Shearn, 50 Conn. App. 225, 228, 717 A.2d 793 (1998). The court is not required, however, to consider all of the § 46b-82 criteria when modification of alimony is sought pursuant to a dissolution agreement. “While the court is directed to apply the criteria of General Statutes § 46b-82 at the time of the original decree or when modifying the decree because of a change of circumstances of the parties not contemplated when the marriage was dissolved . . . neither of these considerations were presented here.” (Citation omitted.) Sweeny v. Sweeny, 9 Conn. App. 498, 502-503, 519 A.2d 1237 (1987).

“The agreement was ordered incorporated . . . into the dissolution decree. A judgment rendered in accordance with such a stipulation of the parties is to be regarded and construed as a contract.” (Internal quotation marks omitted.) Issler v. Issler, 250 Conn. 226, 234-35, 737 A.2d 383 (1999); see also Mihalyak v. Mihalyak, supra, 30 Conn. App. 522 (judgment that incorporates separation agreement to be regarded as contract and construed pursuant to contract law); Sweeny v. Sweeny, supra, 9 Conn. App., 501-502 (same). Accordingly, in addressing the plaintiffs request for modification of alimony, the court properly considered the terms of the dissolution decree, which incorporated the agreement of the parties in the form of a stipulation. See Mihalyak v. Mihalyak, supra, 521.

“The ultimate issue for this court is whether the trial court, in construing the judgment as a contract, reasonably could have concluded as it did.” (Internal quotation marks omitted.) Id., 522, citing Pasquariello v. Pasquariello, 168 Conn. 579, 584, 362 A.2d 835 (1975). “Accordingly, [o]ur resolution of the [plaintiffs] claim is guided by the general principles governing the construction of contracts. A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction.” (Internal quotation marks omitted.) Issler v. Issler, supra, 250 Conn. 235.

The trial court cited Sweeny with approval, noting that in that case the “trial court rejected the defendant’s argument [that] the [term] ‘adjustment’ in . . . the separation agreement means that the court should conduct a full-scale review of the parties’ current financial condition and employ all of the criteria of § 46b-82 to, in effect, reset the alimony.” We agree with the defendant that a full review of all of the § 46b-82 criteria was not required in this modification. “Eveiy reasonable presumption will be made in favor of the court’s proper exercise of discretion.” Meehan v. Meehan, 40 Conn. App. 107, 111, 669 A.2d 616, cert. denied, 236 Conn. 915, 673 A.2d 1142 (1996).

In its memorandum of decision, the court held: “The judgment herein is to be modified, but not for ‘change of circumstance’ reasons. It is to be modified to take into account (1) the plaintiffs current health, (2) the extent to which the plaintiff has become unable to work due to health reasons ... (3) the consequential diminution of the plaintiffs earning capacity, (4) the extent to which the plaintiffs finances have been adversely affected by such inability to work and (5) any consequential increases in her expenses attributable to her failing health.”

We conclude that the court reasonably limited the evidence to that which was necessary to establish the impact that the plaintiffs illness had on her income and her resulting unpaid medical expenses. Therefore, the court did not abuse its discretion in refusing to hear evidence on all of the criteria enumerated in § 46b-82.

Ill

The plaintiff also contends that the court improperly found that “[a]t the time of the dissolution, the parties . . . anticipated and acknowledged the fact that the plaintiff had a chronic health problem which, in time, might adversely affect her ability to earn the income that she was receiving at the time of the dissolution.” We decline to review the plaintiffs claim.

“In order to conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did.” (Internal quotation marks omitted.) Lake v. Lake, 49 Conn. App. 89, 91, 712 A.2d 989, cert. denied, 246 Conn. 902, 719 A.2d 1166 (1998). We note, however, that “[i]t is a well established principle of appellate procedure that the appellant has the duty of providing this court with a record adequate to afford review. Practice Book § 61-10 . . . .” (Citations omitted; internal quotation marks omitted.) Porter v. Porter, supra, 61 Conn. App. 801.

“Where the factual or legal basis of the trial court’s ruling is unclear, the appellant should seek articulation pursuant to Practice Book § [66-5].” (Internal quotation marks omitted.) Porter v. Porter, supra, 61 Conn. App. 801. “Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court; . . . any decision made by us respecting the [plaintiffs] claim would be entirely speculative.” (Internal quotation marks omitted.) Id.

The plaintiff argues that she denied any chronic illness at the time of the dissolution, and that there is no evidentiary basis for this finding of fact. As the defendant correctly notes in response, “[i]t is the sole province of the trial court to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Internal quotation marks omitted.) Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985). In finding that the parties had anticipated and acknowledged the fact that the plaintiff had a chronic health problem, the court failed to state the basis of that factual determination. “Because the [plaintiff] did not seek an articulation on this matter, we do not have a record adequate to review the court’s finding.” Porter v. Porter, supra, 61 Conn. App. 802. Therefore, we decline to review the plaintiffs claim.

IV

The plaintiff claims finally that the court improperly ordered that the defendant’s alimony obligation would terminate once the plaintiff reaches sixty-two years of age.

“In order to conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did.” (Internal quotation marks omitted.) Id., 797, quoting Lake v. Lake, supra, 49 Conn. App. 91.

“[T]ime limited alimony award generally is for rehabilitative purposes, but other reasons may also support this type of alimony award. Another reason is to provide support for a spouse until some future event occurs that renders such support less necessary or unnecessary.” Mathis v. Mathis, 30 Conn. App. 292, 294, 620 A.2d 174 (1993). “Although a specific finding for an award of time limited alimony is not required, the record must indicate the basis for the trial court’s award.” (Internal quotation marks omitted.) Id., 293. The policy for allowing time limited alimony at the dissolution stage also applies at the modification stage. See Glinski v. Glinski, 26 Conn. App. 617, 602 A.2d 1070 (1992) (court at modification hearing adjusted time limited alimony). Here, the court heard evidence regarding the plaintiffs income in 1996 as well as several projections of her future disability income if she activated her annuity and pension plan. We conclude that the court did not abuse its discretion when it imposed a time limit on the defendant’s alimony payments.

The judgment is affirmed.

In this opinion the other judges concurred.

       The judgment states in relevant part: “Custody of the minor children is awarded to the plaintiff with rights of reasonable visitation to the defendant, as more specifically set forth in the stipulation hereinafter mentioned.
      “All matters pertaining to support, alimony, disposition of individually owned and jointly-owned property, personal as well as real estate, payment of existing obligations of the parties, insurance and all other financial matters including payment of counsel fees have been spelled out in a stipulation which was read into the record, approved orally by both parties, their counsel and the court, and has been found by the court to be fair and equitable under all of the circumstances.”

       The plaintiffs motion for modification states in relevant part: “The plaintiff in the above entitled action respectfully represents the following: 1. That the marriage of the parties was dissolved on February 9, 1979 .... 2. That the plaintiff was awarded One ($1.00) Dollar per year alimony and the right to request an increase in the $1.00 per year alimony in the event she is unable to work because of ill health. 3. That the plaintiff is unable to work because of ill health and the current alimony order should be modified accordingly. . . .”

       The November 9, 1998 memorandum of decision regarding the plaintiffs motion for modification limited the revised payments until the first of (1) the death of either of the parties, (2) the remarriage of the plaintiff, (3) cohabitation by the plaintiff with an adult male or (4) the attainment by the plaintiff of the age of sixty-two.

       In its memorandum of decision, the court held: “The judgment herein is to be modified, but not for ‘change of circumstance’ reasons. It is to be modified to take into account (1) the plaintiffs current health, (2) the extent to which the plaintiff has become unable to work due to health reasons ... (3) the consequential diminution of the plaintiffs earning capacity, (4) the extent to which the plaintiffs finances have been adversely affected by such inability to work and (5) any consequential increases in her expenses attributable to her failing health.”

       General Statutes § 46b-82 provides in relevant part: “In determining whether alimony shall be awarded, and the duration and amount of the award, the court . . . shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent, to whom the custody of minor children has been awarded, the desirability of such parent’s securing employment.”

       We express no opinion as to whether the stipulation is an exclusive list of the grounds for modification of alimony.

       See footnote 2.

       See footnote 5.

       Moreover, we note that such a time limit on alimony is not permanent. “The trial court does retain continuing jurisdiction to modify or terminate alimony and child support orders, unless the orders are based on a stipulated agreement that expressly bars future modification. General Statutes 46b-86; Barnard v. Barnard, 214 Conn. 99, 114, 570 A.2d 690 (1990).”Passamano v. Passamano, 228 Conn. 85, 88-89 n.4, 634 A.2d 891 (1993).


source: Caselaw Access Project

license: Public Domain

text:
    TONISHA SPEARS ET AL. v. BENIGA GARCIA ET AL.
    (AC 20487)
    Lavery, C. X, and Schaller and Spear, Js.

      Argued June 13
    officially released November 6, 2001

      Karen E. Souza, with whom, on the brief, was Alan E. Silver, for the appellants (plaintiffs).

      Arthur C. Laske III, assistant city attorney, for the appellees (defendant city of Bridgeport et al.).
   Opinion

SCHALLER, J.

In this negligence action, the plaintiffs, Tonisha Spears and Medina Spears, appeal from the judgment of the trial court granting summary judgment in favor of the defendants, the city of Bridgeport and the Bridgeport fire department, on the ground of governmental immunity. The plaintiffs claim on appeal that the court improperly determined, according to its interpretation of Williams v. New Haven, 243 Conn. 763, 707 A.2d 1251 (1998), that the plaintiffs’ failure to plead General Statutes § 52-557n in their complaint was fatal to their cause of action even though the requirements of Practice Book § 10-3 (a) are directory. We reverse the judgment of the trial court.

The following facts and procedural history are necessary to our resolution of the plaintiffs’ appeal. The plaintiffs brought this action against the defendants for injuries that Tonisha Spears sustained on June 28,1994. On that date, a motor vehicle struck her after she was pushed into the road by a high pressure stream of water flowing from a fire hydrant, which had been opened by an unauthorized person. The hydrant did not have a safety device or a cap to prevent unauthorized openings as of the date of the incident.

In their complaint, the plaintiffs alleged that the defendants were negligent for failing to install safety devices on the hydrant and for failing to inspect it. The plaintiffs’ complaint, however, did not mention any statutory authority that abrogated the defendants’ governmental immunity. The defendants, in their answer, pleaded that immunity as a special defense.

On December 16,1998, the defendants filed a motion for summary judgment, claiming that the plaintiffs’ action was barred by the doctrine of governmental immunity because they failed to cite any statute in their complaint that abrogated the immunity. To advance that position, the defendants cited Williams v. New Haven, supra, 243 Conn. 763, in their memorandum of law supporting the motion for summary judgment. The plaintiffs, in response, filed a memorandum in opposition to the motion for summary judgment. In the memorandum, the plaintiffs mentioned for the first time § 52-557n as abrogating the defendants’ immunity. The plaintiffs also distinguished Williams, noting that the plaintiffs in that case never relied on § 52-557n throughout the proceedings. See id., 766. In contrast, the plaintiffs here emphasize that although they did not specifically plead the statute in the complaint, the defendants were sufficiently apprised of the statute in the plaintiffs’ memorandum.

During oral arguments on the motion for summary judgment, the parties reiterated their positions. The defendants also claimed at oral argument that pursuant to Practice Book § 10-3 (a), “[w]hen any claim made in a complaint ... is grounded on a statute, the statute shall be specifically identified by its number.” The court, in response, noted that the language of that section has been interpreted to be directory rather than mandatory. In addition, the court found the facts of the present case to be remarkably similar to those of Williams and that in both Williams and the present case, the plaintiffs relied solely on their claim of common-law negligence and, at no time, advanced any statutory basis for the defendants’ liability.

The court granted the defendants’ motion, holding that although Practice Book § 10-3 (a) has been read as directory rather than mandatory, Williams is controlling on the present case. This appeal followed.

I

The plaintiffs claim that the court improperly determined, on the basis of its interpretation of Williams v. New Haven, supra, 243 Conn. 763, that the plaintiffs’ failure to plead § 52-557n in their complaint was fatal to their cause of action even though the requirements of Practice Book § 10-3 (a) are directory. To support their claim, the plaintiffs assert that the facts of their case are distinguishable from those in Williams and that the court’s interpretation is inconsistent with Practice Book § 10-3 (a). We agree.

As an initial matter, we set forth our standard of review applicable to a trial court’s decision regarding a motion for summary judgment. “The standards governing our review of a trial court’s decision to grant a motion for summary judgment are well established. 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. . . . Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . Tarzia v. Great Atlantic & Pacific Tea Co., 52 Conn. App. 136, 145, 727 A.2d 219 (1999) [appeal dismissed, 254 Conn. 786, 759 A.2d 502 (2000)].

“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. . . . Avon Meadow Condominium Assn., Inc. v. Bank of Boston Connecticut, 50 Conn. App. 688, 693, 719 A.2d 66, cert. denied, 247 Conn. 946, 723 A.2d 320 (1998). Because the trial court rendered judgment for the [defendant] as a matter of law, our review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record. . . . Gateway Co. v. DiNoia, 232 Conn. 223, 229, 654 A.2d 342 (1995).” (Internal quotation marks omitted.) Kroll v. Steere, 60 Conn. App. 376, 380-81, 759 A.2d 541, cert. denied, 255 Conn. 909, 763 A.2d 1035 (2000). We must determine, therefore, whether the court’s interpretation of Williams and Practice Book § 10-3 (a) was legally correct.

We begin by examining our Supreme Court’s decision in Williams v. New Haven, supra, 243 Conn. 763. In that case, the plaintiffs sought to recover damages against the defendant city of New Haven for injuries that the minor plaintiff sustained when he was struck by a high pressure stream of water flowing from a fire hydrant, which had been opened by an unauthorized person. Id., 764. In their complaint, the plaintiffs alleged common-law negligence against the defendant, but failed to cite therein any authority abrogating the defendant’s governmental immunity. Id., 766. The case proceeded to the jury, and it found in favor of the plaintiffs. Id., 764. Subsequently, the defendant appealed, claiming that the doctrine of governmental immunity applied and that the plaintiffs did not cite any statute abrogating that immunity. Id. Our Supreme Court noted that “it is clear that a municipality enjoys governmental immunity for common-law negligence unless a statute has limited or abrogated that immunity . . . .” Id., 769. It held that the plaintiffs’ action must fail because “[they did] not rely on any such statute . . . .” (Emphasis added.) Id. In so holding, the Supreme Court emphasized that “throughout the entire course of this litigation, including the allegations of the complaint, the trial and this appeal, the plaintiffs have relied solely on their claim of common-law negligence on the part of the defendant. At no time have they advanced any statute as a basis for the liability of the defendant in this case.” Id., 766. The defendants in the present case argue that Williams stands for the proposition that a statute abrogating governmental immunity must actually be pleaded, not simply relied on at some point in the proceedings. We disagree.

Recently, this court in Colon v. Board of Education, 60 Conn. App. 178, 188 n.4, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000), had the opportunity to discuss Williams as it pertains to the present matter. The defendant in Colon argued, as an alternate ground for affirmance, that on the basis of Williams, governmental immunity barred recovery because the plaintiffs did not rely on any statute that abrogates such immunity. We rejected the defendant’s argument and stated: “In this case, unlike in Williams, the plaintiffs raised General Statutes § 52-557n, which sets forth general principles of municipal liability and immunity, in opposing the defendant’s motion for summary judgment. While the defendant is correct in pointing out that the plaintiffs did not cite § 52-557n in their complaint or amend their complaint to include such statute, the plaintiffs’ failure to do so does not necessarily preclude recovery. Although Practice Book § 10-3 (a) provides that when any claim in a complaint is grounded on a statute, the statute shall be specifically identified by its number, this rule has been construed as directory rather than mandatory. Criscuolo v. Mauro Motors, Inc., 58 Conn. App. 537, 545, 754 A.2d 810 (2000). As long as the defendant is sufficiently apprised of the nature of the action; Goodrich v. Diodato, 48 Conn. App. 436, 443, 710 A.2d 818 (1998); the failure to comply with the directive of Practice Book § 10-3 (a) will not bar recovery. See Criscuolo v. Mauro Motors, Inc., supra, 546-47.” Colon v. Board of Education, supra, 188 n.4. It is true that this language in Colon is dictum, but we nonetheless view its interpretation as sound. Any other interpretation of Williams would make it inconsistent with Practice Book § 10-3 (a). See Fahy v. Fahy, 227 Conn. 505, 513-14, 630 A.2d 1328 (1993) (“courts must discharge their responsibility ... to assure that the body of the law — both common and statutory — remains coherent and consistent”). We therefore hold that under Williams, although a plaintiff should plead a statute in a complaint that abrogates governmental immunity, failing to do so will not necessarily bar recovery as long as the defendants are sufficiently apprised of the applicable statute during the course of the proceedings.

The facts of the present case are distinguishable from those in Williams. Here, the plaintiffs did fail to plead § 52-557n in their complaint. Unlike the plaintiffs in Williams, however, the plaintiffs in the present case relied on the statute in their memorandum of law in opposition to the motion for summary judgment and in oral argument before the trial court. That sufficiently apprised the defendants that the plaintiffs were relying on § 52-557n to abrogate governmental immunity. Under the circumstances of this case, the defendants cannot complain of unfair surprise. We conclude, therefore, that the trial court improperly granted the defendants’ motion for summary judgment on the basis of governmental immunity and the plaintiffs’ failure to plead the statute abrogating that immunity.

II

As an alternate ground for affirmance, the defendants argue that the plaintiffs cannot rely on § 52-557n to bring a direct cause of action for negligence against a municipality. The defendants note that allowing such an action is a significant departure from the general common-law principle of governmental immunity from vicarious liability. As such, the defendants argue that this immunity cannot be abrogated unless there is clear statutory language to that effect, which they contend is lacking in § 52-557n (a). We are not persuaded.

The defendants correctly point out that allowing a direct cause of action against a municipality is a significant departure from general common-law principles. “A municipality itself was generally immune from liability for its tortious acts at common law . . . .” (Citation omitted.) Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 165, 544 A.2d 1185 (1988). Furthermore, “[a]t common law, municipal officers were liable for their own torts, but the municipality, their municipal ‘master,’ was not vicariously liable for those torts.” Sanzone v. Board of Police Commissioners, 219 Conn. 179, 193, 592 A.2d 912 (1991). “Governmental immunity may, however, be abrogated by statute. The state legislature possesses the authority to abrogate any governmental immunity that the common law gives to municipalities. Ryszkiewicz v. New Britain, 193 Conn. 589, 593, 479 A.2d 793 (1984). The general rule developed in the case law is that a municipality is immune from liability unless the legislature has enacted a statute abrogating that immunity. Williams v. New Haven, supra, 243 Conn. 766-67. Statutes that abrogate or modify governmental immunity are to be strictly construed. . . . This rule of construction stems from the basic principle that when a statute is in derogation of common law or creates a liability where formerly none existed, it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of construction.” (Internal quotation marks omitted.) Tryon v. North Branford, 58 Conn. App. 702, 720, 755 A.2d 317 (2000).

“In construing any statute, we seek to ascertain and give effect to the apparent intent of the legislature. . . . It is an axiom of statutory construction that legislative intent is to be determined by an analysis of the language actually used in the legislation. . . . [W]hen the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent. . . . When the language of a statute is unclear, we may ascertain the intent of the legislature by looking beyond the language to the statute’s legislative history and the purpose that the statute was intended to serve.” (Citation omitted; internal quotation marks omitted.) Rizzo Pool Co. v. Del Grosso, 240 Conn. 58, 73-74, 689 A.2d 1097 (1997); see also Sanzone v. Board of Police Commissioners, supra, 219 Conn. 187. Having those well established canons of statutory construction in mind, we now turn to the language of the statute.

Section 52-557n (a) (1) provides in relevant part: “Except as otherwise provided by law, apolitical subdivision of the state shall be liable for damages to person or property caused by . . . (A) [t]he negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties . . . .” Contrary to the defendants’ argument, we conclude that the language of § 52-557n (a) is clear and unambiguous with respect to vicarious liability. Such language plainly indicates the legislature’s intent to abrogate governmental immunity that the common law gives to municipalities with respect to vicarious liability. Because the words of the statute themselves are clear on the matter, we need not embark on an inquiry into the legislative history.

The defendants also contend that allowing a direct action under § 52-557n (a) would be inconsistent with General Statutes § 7-465, under which a municipal employer may be liable pursuant to the indemnity doctrine for judgments rendered against its employees under certain circumstances. According to the defendants, allowing a direct action under § 52-557n (a) would circumvent the six month filing period under § 7-465 because a party would rely on the former option so as to avoid the time limit in the latter. We do not agree.

We conclude that both statutes can be read to coexist. Under § 7-465, a municipal employer must indemnify its employees for judgment rendered against them under certain circumstances. Pursuant to § 52-557n (a), governmental immunity is abrogated for a direct cause of action under certain circumstances. See General Statutes § 52-557n (a). Those circumstances include “[t]he negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties . . . .” General Statutes § 52-557n (a) (1) (A). Subsections (a) and (b), however, set forth several circumstances under which a municipality shall not be hable. See General Statutes § 52-557n (a) and (b). Nowhere in that exhaustive list of exclusions does the legislature mention § 7-465. Had the legislature intended to force the parties to comply with the filing requirement for indemnification under § 7-465 before resorting to § 52-557n (a), it certainly could have drawn that distinction in the text of the latter statute. See Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 195, 663 A.2d 1001 (1995) (“[w]e will not impute to the legislature an intent that is not apparent from unambiguous statutory language in the absence of a compelling reason to do so”). Those statutes can be read to coexist in that parties may choose to rely on either statute as long as they meet the requirements therein. We conclude that the plaintiffs can rely on § 52-557n to bring a direct cause of action for negligence against a municipality and, thus, reject the defendants’ alternate ground for affirmance.

The judgment is reversed and the case is remanded with direction to deny the motion for summary judgment and for further proceedings according to law.

In this opinion the other judges concurred.

       Medina Spears brought this action as parent and next friend of her minor daughter, Tonisha Spears. Medina Spears also brought this action on her own behalf for damages arising from the minor plaintiffs injuries.

       In their original complaint, the plaintiffs also named Beniga Garcia as a defendant. Garcia was the op erator of the motor vehicle that struck Tonisha Spears. The plaintiffs, however, later withdrew their claims as to Garcia. We refer in this opinion to the city and its fire department as the defendants.

       General Statutes § 52-557n provides in relevant part: “Liability of political subdivision and its employees, officers and agents. Liability of members of local boards and commissions, (a) (1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties; (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit; and (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance; provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149. (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct; or (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law. ...”

       Indeed, the general trend in jurisdictions across the country has been away from governmental immunity; see Antinerella v. Rioux, 229 Conn. 479, 497, 642 A.2d 699 (1994); with many jurisdictions holding a municipality liable for the torts of its employees that occur within the course of employment. “Municipal corporations generally fall within the rule that tire superior or employer must answer civilly for the negligence or want of skill of his or her agent or servant in the course of the agent’s employment. In other words, the rule of respondeat superior applies to municipal corporations.” 18 E. McQuillin, Municipal Corporations (3d Ed. Rev. 1993) § 53.65, p. 437.

       The defendants argue that we should nonetheless delve into the legislative history because of the statute’s significant departure from the common law. To support that argument, they cite Elliott v. Waterbury, 245 Conn. 385, 715 A.2d 27 (1998), in which our Supreme Court examined the legislative history to interpret General Statutes § 52-557n (b) (6). That case, however, is distinguishable because the court noted that “[njeither the plaintiff nor the defendants [claimed] that the language of the provision alone . . . dictates adoption of their respective proposed interpretations. Likewise, all parties tacitly [admitted] that it could support either the plaintiffs or the defendants’ interpretation.” Elliott v. Waterbury, supra, 395. In contrast, the plaintiffs in the present case argue, and we agree, that the language of § 52-557n (a) is clear and unambiguous.

       General Statutes § 7-465 (a) provides in relevant part: “Any town, city or borough . . . shall pay on behalf of any employee of such municipality ... all sums which such employee becomes obligated to pay . . . for damages awarded for infringement of any person’s civil rights or for physical damages to person or property ... if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty. . . .”


author: MIHALAKOS, J. LANDAU, J.,

text:
    MARY TRUGLIO ET AL. v. HAYES CONSTRUCTION COMPANY
    (AC 20681)
    Landau, Spear and Mihalakos, Js.
    Argued June 4
    officially released November 6, 2001

      Jonathan N. Perkins, with whom, on the brief, were Joseph Dieso and John C. Mayano, for the appellants (plaintiffs).

      Robert L. Cavanaugh, Jr., for the appellee (defendant).
   Opinion

MIHALAKOS, J.

In this action, which was commenced pursuant to the Connecticut Product Liability Act (act), the plaintiffs, Mary Truglio and Peter Truglio, appeal from the summary judgment rendered in favor of the defendant, Hayes Construction Company. On appeal, the plaintiffs claim that the trial court improperly (1) permitted the defendant to challenge the legal sufficiency of their complaint in its motion for summary judgment and (2) granted the defendant’s motion for summary judgment. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the disposition of the plaintiffs’ appeal. On November 23,1998, the plaintiffs filed an amended complaint in which they alleged that the defendant was hable to them for damages resulting from a fall Mary Truglio had suffered while walking on a sidewalk in 1996. In support of that allegation, the plaintiffs pleaded the following: (1) a defect in the sidewalk caused Mary Truglio to fah; (2) the defendant constructed that sidewalk in a defective manner; (3) that sidewalk was a “product” under the act; (4) the defendant was a “product seller,” as defined in the act; and (5) the defendant was hable under the act for damages resulting from the fall.

On December 22, 1999, the defendant filed a motion for summary judgment. In support of its motion, the defendant submitted the affidavit of Stephen D. Hayes, its vice president, who averred, inter alia, that the form and pour method was the only method that the defendant employed to construct sidewalks. On February 1, 2000, the plaintiffs filed a memorandum of law in opposition to the defendant’s motion for summary judgment. In support of their opposition to the defendant’s motion, the plaintiffs submitted the affidavit of Edward Halprin, who averred that in his expert opinion, the front curbing, the bricks of the planter and the pavers had been delivered to the site of the sidewalk and installed. Halprin, in his affidavit, did not offer an opinion as to how the sidewalk itself had been constructed. On February 28,2000, the plaintiffs filed a memorandum of law supplementing their opposition to the motion for summary judgment, in which they alleged that Hayes’ affidavit was not based on personal knowledge and, therefore, was invalid.

On March 21, 2000, the court granted the defendant’s motion for summary judgment, concluding that (1) the sidewalk that the defendant had constructed was not a “product” and (2) therefore, the plaintiffs’ claims were beyond the scope of the act. In so doing, the court consulted the Model Uniform Product Liability Act (model act), 44 Fed. Reg. 62,714-50 (1979), because the legislature, in General Statutes § 52-572m et seq., had not defined the word “product.” The model act provides in relevant part: “ ‘Product’ means any object possessing intrinsic value, capable of deliveiy either as an assembled whole or as a component part or parts, and produced for introduction into trade or commerce. . . .”44 Fed. Reg. 62,717. Applying that definition, the court concluded that the on-site construction of a sidewalk using the form and pour method was not a product but a service. After reviewing the parties’ affidavits, the court concluded that Hayes’ averment that the defendant used only the form and pour method was uncontested. Consequently, because no genuine issue of material fact remained as to whether the sidewalk was a “product,” the court concluded that the plaintiffs’ claims were beyond the scope of the act. This appeal followed on April 6, 2000. Additional facts and procedural history will be presented as necessary.

INTRODUCTION

For the plaintiffs to succeed ultimately in this product liability action, they must establish that the sidewalk that the defendant constructed was a product. See Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 403, 528 A.2d 805 (1987); see also General Statutes § 52-572n (a). The act does not include a definition for the term “product;” a definition for the term “product seller” is provided, however. General Statutes § 52-572m (a). “ ‘Product seller’ means any person or entity, including a manufacturer, wholesaler, distributor or retailer who is engaged in the business of selling such products whether the sale is for resale or for use or consumption. The term ‘product seller’ also includes lessors or bailors of products who are engaged in the business of leasing or bailment of products.” General Statutes § 52-572m (a).

The definition of “product seller” provided by § 52-572m (a) is identical to the definition provided by § 102 (1) of the Draft Uniform Product Liability Law (draft act), 44 Fed. Reg. 2996, 2997-98 (1979). Also, the draft act, like § 52-572m et seq., does not include a definition for the term “product.” See id., 2996-3019. Those are not mere coincidences, for, as our Supreme Court previously has stated, the legislature based § 52-572m et seq. on the draft act (not on the model act). See, e.g., Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 230, 694 A.2d 1319 (1997); Elliot v. Sears, Roebuck & Co., 229 Conn. 500, 505-506, 642 A.2d 709 (1994). Because the legislature, in § 52-572m (a), adopted verbatim the language of § 102 (1), we look to the commentary to § 102 (1) of the draft act for guidance. See Potter v. Chicago Pneumatic Tool Co., supra, 230-31 (“[b]ecause § 52-572p adopted the language of § 110 of the draft act nearly verbatim, we look to the commentary to the draft act for guidance”).

The commentary to § 102 (1) of the draft act provides in relevant part: “The Act does not address several definitional problems of ‘product seller.’ First, it does not address the problem of the product seller engaged in a service. See ‘Newmark v. Gimbel’s Inc.,’ 54 N.J. 585, 258 A.2d 697 (1969). It is suggested that a party be considered a product seller where a sale of a product is a principal part of the transaction and where the essence of the relationship between the buyer and seller is not the furnishing of professional skill or services. See Annot., 29 ‘A.L.R.’ 3d 1425 (1970).” (Emphasis in original.) 44 Fed. Reg. 3003.

As we conclude in this opinion, the affidavits and other evidence in the present case disclose that the defendant constructed the sidewalk using the form and pour method. See part II. The essence of the relationship between the defendant and the buyer was the furnishing of a service, not the sale of a product, because the sidewalk was composed of concrete that was transported in liquid form to the site and then used by the defendant to pour the sidewalk. See footnote 6. With that conclusion in mind, we now consider the plaintiffs’ procedural claim and, thereafter, explain the basis for our conclusion that the defendant constructed the sidewalk using the form and pour method.

I

First, the plaintiffs claim that the court improperly permitted the defendant to challenge the legal sufficiency of their complaint in its motion for summary judgment. Specifically, the plaintiffs claim that the defendant, in failing to file a motion to strike the operative complaint, waived its right to challenge the legal sufficiency of that complaint. We reject the plaintiffs’ claim.

The following procedural history is relevant to the plaintiffs’ claim. In their operative complaint, the plaintiffs alleged, inter alia, that “the defendant . . . caused to be designed, constructed, manufactured and installed the sidewalk-in-issue which is a product pursuant to [General Statutes] § 52-572m.” The defendant did not file a request to revise the amended complaint; see Practice Book § 10-35; or a motion to strike the amended complaint. See Practice Book § 10-39. On December 27, 1999, approximately one year after the plaintiffs filed their amended complaint, the defendant filed a motion for permission to file a motion for summary judgment pursuant to Practice Book § 17-44. The court granted that motion and, thereafter, considered the motion for summary judgment, which the defendant had filed five days earlier.

In its motion for summary judgment, the defendant raised the following three part argument: (1) a sidewalk is not necessarily a “product,” i.e., a sidewalk constructed using the form and pour method is not a “product”; (2) even when viewed in the light most favorable to the plaintiffs, the pleadings and the affidavits establish that the defendant used only the form and pour method when it constructed sidewalks; and (3) for the foregoing reasons, the court should render summary judgment in its favor. On February 1, 2000, the plaintiffs filed a memorandum of law in opposition to the defendant’s motion for summary judgment. In their memorandum, the plaintiffs argued that (1) the defendant, in its motion for summary judgment, was challenging the legal sufficiency of their complaint and (2) the use of that motion for that purpose was improper. Nonetheless, the plaintiffs never indicated to the court that they required additional time to obtain affidavits or other evidence to contradict the defendant’s averment that it used only the form and pour method when constructing sidewalks. The court, despite the plaintiffs’ opposition, elected to consider the defendant’s three part argument and, as previously discussed, granted the defendant’s motion for summary judgment.

The plaintiffs claim that they were prejudiced by the court’s decision to consider, and later credit, the defendant’s three part argument in favor of summary judgment. Specifically, the plaintiffs maintain that they were prejudiced when the court considered a challenge to the legal sufficiency of their complaint (a motion to strike) in the context of the motion for summary judgment. We recognize that “[tjhere is a substantial difference between a motion for summary judgment and a motion to strike. The granting of a defendant’s motion for summary judgment puts the plaintiffs out of court, as it did in this case. See Practice Book § 17-49. The granting of a motion to strike allows the plaintiff to replead his or her case. See Practice Book § 10-44.” Rivera v. Double A Transportation, Inc., 248 Conn. 21, 38 n.3, 727 A.2d 204 (1999) (Berdon, J., concurring in part, dissenting in part).

Admittedly, the first part of the defendant’s three part argument addresses a question of statutory inteipretation and, thus, possesses some of the characteristics of a motion to strike. Although the defendant never filed a motion to strike the amended complaint, the plaintiffs were aware from the text of the defendant’s motion for summary judgment that the defendant was challenging, either directly or indirectly, the legal sufficiency of their complaint, and the record discloses that the plaintiffs responded accordingly.

Given the procedural history of the case, we instead believe that the following inquiry must be undertaken to resolve the plaintiffs’ claim: (1) whether the plaintiffs were capable of obtaining additional affidavits or other evidence in their effort to contradict Hayes’ affidavit, which indicated that the defendant used only the form and pour method when constructing sidewalks, and, if so, (2) whether the procedural latitude that the court afforded the defendant prevented the plaintiffs from obtaining that evidence in time to aid in their efforts to oppose the defendant’s motion for summary judgment. The record discloses that the plaintiffs did not file a motion for extension of time to file their opposition to the defendant’s motion for summary judgment. The record discloses also that the plaintiffs did not otherwise indicate to the court that they were capable of obtaining additional affidavits or other evidence to aid in their efforts to contradict Hayes’ affidavit. Moreover, in their appeal, the plaintiffs have not asserted that, since filing their opposition to the motion for summary judgment, they obtained additional evidence that would have aided in their efforts to contradict Hayes’ affidavit. From those circumstances, we infer that the plaintiffs were not capable of obtaining additional evidence in their effort to contradict Hayes’ affidavit, which indicated that the defendant used only the form and pour method when constructing sidewalks. We therefore conclude that the plaintiffs were not prejudiced by the court’s decision to afford the defendant procedural latitude. Accordingly, we conclude also that the court did not act improperly in exercising its discretion on behalf of the defendant. See Boucher Agency, Inc. v. Zimmer, 160 Conn. 404, 409-10, 279 A.2d 540 (1971).

II

The plaintiffs claim that the court improperly granted the defendant’s motion for summary judgment. Specifically, the plaintiffs argue that the court improperly concluded that they failed to contradict Hayes’ affidavit averring (1) that the defendant used only the form and pour method, and (2) the defendant constructed the sidewalk in question using that method. We disagree.

“ ‘The standards governing our review of a trial court’s decision to grant a motion for summary judgment are well established. Practice Book § 384 [now § 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 seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.’ ” (Citations omitted.) Rivera v. Double A Transportation, Inc., supra, 248 Conn. 24.

“ ‘To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts in accordance with Practice Book (1998 Rev.) §§ 17-45 and 17-46, formerly §§ 380 and 381, which contradict those stated in the movant’s affidavits and documents and show that there is a genuine issue for trial. If he does not so respond, summary judgment shall be entered against him. Farrell v. Farrell, 182 Conn. 34, 38, 438 A.2d 415 (1980); Rusco Industries, Inc. v. Hartford Housing Authority, 168 Conn. 1, 5, 357 A.2d 484 (1975).’ Inwood Condominium Assn. v. Winer, 49 Conn. App. 694, 697, 716 A.2d 139 (1998).” Hryniewicz v. Wilson, 51 Conn. App. 440, 444, 722 A.2d 288 (1999).

When viewed in the light most favorable to the plaintiffs, the affidavits and other proof submitted by the parties disclose that Hayes’ affidavit is uncontradicted. The plaintiffs maintain that Halprin’s affidavit, which they submitted in opposition to the defendant’s motion for summary judgment, contradicts Hayes’ affidavit. Hayes, in his affidavit, averred: “The sidewalks and walkways at the Post Office [the location where Mary Truglio allegedly fell] were constructed on site by the ‘form and pour’ method, which is the only way that sidewalks or walkways are and have been created by MS&P (now known as The Hayes Construction Company).”

Halprin, in his affidavit, averred in relevant part: “3. In my experience, construction is sometimes accomplished by the forming of concrete slabs at a central location and the transportation of those slabs for installation at the site. 4. The front walkway at the post office could have been installed by means of delivery to the site of precast concrete slabs.”

Contrary to the plaintiffs’ assertion, Halprin’s affidavit does not contradict Hayes’ affidavit.. At best, Halprin averred that (1) sidewalks are sometimes composed of prefabricated concrete slabs that are merely installed on-site and (2) the sidewalk on which Mary Truglio allegedly fell could be composed of prefabricated concrete slabs. “It has long been recognized that, in order to avoid speculation and conjecture, ‘[a] trier is not concerned with possibilities but with reasonable probabilities.’ Boland v. Vanderbilt, 140 Conn. 520, 525, 102 A.2d 362 (1953). . . . ‘Whether an expert’s testimony is expressed in terms of a reasonable probability that an event has occurred does not depend upon the semantics of the expert or his use of any particular term or phrase, but rather, is determined by looking at the entire substance of the expert’s testimony.’ Struckman v. Burns, 205 Conn. 542, 555, 534 A.2d 888 (1987).” (Citations omitted.) Vickers v. Jessup, 32 Conn. App. 360, 363-64, 629 A.2d 457, cert. granted, 227 Conn. 922, 632 A.2d 701 (1993) (appeal withdrawn March 18, 1994). Viewing the entire substance of Halprin’s statements, we conclude that those statements are merely unsubstantiated suppositions with which the court need not be concerned. Halprin expressed no opinion as to what method the defendant had used to construct the sidewalk in the present case. When viewed in the light most favorable to the plaintiffs, Halprin’s affidavit does not allege specific facts that contradict Hayes’ affidavit. See also Kramer v. Petisi, 53 Conn. App. 62, 70, 728 A.2d 1097 (“ ‘a party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment’ ”), cert. denied, 249 Conn. 919, 733 A.2d 229 (1999). Consequently, we conclude that the defendant constructed the sidewalk using the form and pour method. Thus, in accordance with our conclusion that a sidewalk that was constructed using the form and pour method is not a “product” under § 52-572m et seq., we conclude that the court, in this product liability action, properly granted the defendant’s motion for summary judgment.

The judgment is affirmed.

In this opinion SPEAR, J., concurred.

LANDAU, J.,

concurring. I concur respectfully with the result reached by the majority, but I disagree with the route taken to reach that result. I also disagree with the plaintiffs’ claim that the defendant used the motion for summary judgment as amotion to strike, i.e., to test the legal sufficiency of the complaint, and that the trial court gave the defendant procedural latitude in granting its motion for summary judgment.

A motion to strike tests the legal sufficiency of a complaint to state a recognized cause of action. Practice Book § 10-39. A motion to strike assumes all well pleaded facts are true; it does not challenge the truth of the facts alleged, which falls under the guise of a motion for summary judgment or trial. In deciding a motion for summary judgment, a court must undertake a two step process: First, whether there are any genuine issues of material fact and second, whether the moving party is entitled to summary judgment as a matter of law. Miller v. United Technologies Corp., 233 Conn. 732, 745, 660 A.2d 810 (1995). Summary judgment shall be granted if the moving party is entitled to a directed verdict on the same facts. Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 781, 595 A.2d 334 (1991). Here, the issue is not whether the plaintiffs alleged a recognized cause of action, which they did, but whether they could prevail on the facts alleged as a matter of law.

The plaintiffs’ cause of action rises and falls on how the sidewalk was constructed. No motion to strike could have resolved that issue because that fact was determined by evidence outside the pleadings, not by the allegations of the complaint. The defendants submitted an affidavit from Stephen D. Hayes, who, on the basis of his personal knowledge, attested that the sidewalk was created by the form and pour method. The plaintiffs produced no competent evidence to challenge Hayes’ testimony as to how the sidewalk was made. The plaintiffs submitted an affidavit from Edward Halprin, an expert, who attested from his experience, not from facts related to the situation at hand. “While the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion ... a party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.” (Citation omitted; internal quotation marks omitted.) Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn. App. 582, 591, 715 A.2d 807 (1998). Consequently, the court properly determined that there was no genuine issue of material fact as to how the sidewalk was constructed.

The court then decided as a matter of law that a sidewalk created by the form and pour method was not a product under our products liability act. I agree with that portion of the majority opinion affirming the trial court’s resolution of that issue. The court properly rendered summary judgment in favor of the defendant because the defendant would have been entitled to a directed verdict as a matter of law. Because the court rendered summary judgment in keeping with our law and procedure, it did not afford the defendant any procedural latitude by treating the motion for summary judgment as a motion to strike.

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

       General Statutes § 52-572m et seq.

       See General Statutes § 52-572n (a), which provides: “A product liability claim as provided in sections 52-240a, 52-240b, 52-572m to 52-572q, inclusive, and 52-577a may be asserted and shall be in lieu of all other claims against product sellers, including actions of negligence, strict liability and warranty, for harm, caused by a product.” (Emphasis added.)

       Practice Book § 10-35 provides in relevant part: “Whenever any party desires to obtain (1) a more complete or particular statement of the allegations of an adverse party’s pleading . . . the party desiring any such amendment in an adverse party’s pleading may file a timely request to revise that pleading.”

       Practice Book § 10-39 (a) provides in relevant part: “Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted, or (2) the legal sufficiency of any prayer for relief in any such complaint, counterclaim or cross complaint . . . that party may do so by filing a motion to strike the contested pleading or part thereof.”

       In the first part of its three part argument, the defendant maintained that a sidewalk constructed using the form and pour method is not a “product” under General Statutes § 52-572m et seq.

       In his affidavit, Hayes stated in relevant part: “2. I make this affidavit of my own free will and based on my personal knowledge.
      “3.1 have been employed by The Hayes Construction Company since May 1973, and by MS&P Construction Co. since August 1983.
      * ** *
      “7. The sidewalks and walkways at the Post Office [the location where Mary Truglio allegedly fell] were constructed on site by the form and pour’ method, which is the only way that sidewallcs or walkways are and have been created by MS&P (now known as The Hayes Construction Company).

      “8. The ‘form and pour’ method consists of the following: After the placement of the structural fill, and compaction of that material, which in the case of the Post Office was done by Reliable Excavating Company, Inc., sidewalk forms were constructed of lumber by an MS&P (Hayes) employee. The inside of the wood forms were coated with a petroleum spray for easy stripping of the wood forms once the concrete has set up. A concrete mixture was delivered to the job site by a concrete mixer and was poured from a chute into the wood forms. A straight edge known as a screed, was then dragged across the top of the form to smooth out the contents. Concrete finishers then hand floated the concrete surface using wood or metal floats. A ‘broom finish’ was then given to the hardening concrete, using a com broom. That gave the concrete texture. The wood forms were removed approximately twenty-fours after the concrete was poured.”
      Additionally, we note that the plaintiffs claim that Hayes’ affidavit was not based on personal knowledge and, therefore, was invalid. Because the plaintiffs failed to brief that claim adequately, we deem it abandoned and, therefore, decline to review it. See State v. Mims, 61 Conn. App. 406, 410, 764 A.2d 222, cert. denied, 255 Conn. 944, 769 A.2d 60 (2001).

       The plaintiffs appear to have constructed their argument in this court around the sequence of the defendant’s argument in the trial court. Appellate courts must resist the temptation to adopt the labels assigned and logic followed by parties if the appellate mind is of a different opinion.

       “In an appeal from a judgment following the granting of a motion to strike, we must take as true the facts alleged in the plaintiffs complaint and must construe the complaint in the manner most favorable to sustaining its legal sufficiency. ... A motion to strike admits all facts well pleaded. ... A determination regarding the legal sufficiency of a claim is, therefore, a conclusion of law, not a finding of fact. Accordingly, our review is plenary. ... If facts provable in the complaint would support a cause of action, the motion to strike must be denied. . . . Moreover, we note that [w]ha.t is necessarily implied [in an allegation] need not be expressly alleged.” (Citations omitted; internal quotation marks omitted.) Emerick v. Kuhn, 52 Conn. App. 724, 728-29, 737 A.2d 456, cert. denied, 249 Conn. 929, 738 A.2d 653, cert. denied sub nom. Emerick v. United Technologies Corp., 528 U.S. 1005, 120 S. Ct. 500, 145 L. Ed. 2d 386 (1999).

       The majority states in the first sentence of its introduction that for the plaintiffs to succeed ultimately, they must prove that the sidewalk that the defendant constructed was a product. Implicitly, before the plaintiffs can prove that the sidewalk was a product, they must prove that there was no genuine issue as to how the sidewalk was constructed.

       I also disagree with the majority’s citing of Boucher Agency, Inc. v. Zimmer, 160 Conn. 404, 409-10, 279 A.2d 540 (1971). As this court has twice before stated; see Gould v. Mellick & Sexton, 66 Conn. App. 542, 554 n.12, 785 A.2d 265 (2001); Burke v. Avitabile, 32 Conn. App. 765, 772 n.9, 630 A.2d 624, cert. denied, 228 Conn. 908, 634 A.2d 297 (1993); Zimmer is anomalous and limited to the unusual facts and procedural posture of that case. At the time that Zimmer was decided, a motion for summary judgment could be filed only when the pleadings were closed. Effective October 1, 1992, our rules of practice were amended to permit a motion for summary judgment to be filed at any time. Practice Book § 379, now § 17-44.


text:
    IN RE BRIANNA B.

    (AC 20946)
    Schaller, Mihalakos and O’Connell, Js.
    Argued April 23
    officially released November 6, 2001

      Elias A. Alexiades, for the appellant (petitioner).

      Karla A. Turekian, assistant attorney general, with whom was Inez Diaz-Galloza, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and David M. Teed, assistant attorney general, for the appellee (respondent).

      Hilliary H. Horrocks, for the minor child.

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

   Opinion

SCHALLER, J.

The petitioner appeals from the judgment of the trial court finding her in civil contempt of an order of confidentiality in a Juvenile Court proceeding. On appeal, the petitioner claims that the court improperly (1) issued the order of confidentiality in violation of her rights under the state and federal constitutions, (2) found her in contempt of the order of confidentiality and ordered her to pay attorney’s fees to the respondent commissioner of children and families (commissioner), and (3) denied her motion to open the courtroom. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the petitioner’s appeal. This appeal arises from Juvenile Court proceedings involving a minor child, B. On November 20, 1996, the department of children and families (department) placed B in the home of Bruce B. and the petitioner, to whom B later was presented by the department in November, 1997, for adoption. The Juvenile Court had terminated the biological parents’ parental rights to B in 1997 and appointed the department as B’s statutory parent.

The department formally presented B to Bruce B. and to the petitioner for adoption, at which time Bruce B. refused to sign the adoption papers, apparently due to marital discord. The petitioner and Bruce B. divorced in 1998. The department removed B in October, 1998, concluding that to allow either Bruce B. or the petitioner to adopt B would not be in the best interest of the child.

On October 30, 1998, the petitioner filed a habeas corpus petition with the Juvenile Court, seeking the return of B. The Juvenile Court heard the matter and denied the petition on March 29, 1999. The petitioner also unsuccessfully challenged the removal of B through proceedings before the department.

During the habeas proceeding, the commissioner expressed concern that the petitioner was violating the confidentiality of the Juvenile Court proceedings. The court reminded all parties of the confidentiality of the proceedings. On July 1, 1999, the commissioner filed a motion for a protective order to enjoin the petitioner and her mother from disclosing confidential information regarding B. On September 10, 1999, the court granted the motion and ordered the petitioner not to disclose information regarding B.

On December 6, 1999, the commissioner filed a motion for a second protective order, seeking to preclude the petitioner from contacting or communicating with B. On February 22, 2000, the court heard the matter. During the hearing, the commissioner made an oral motion to reaffirm the confidentiality order, producing testimony from B’s foster mother that photographs of B and case information had been posted on the Internet. The court ordered that the petitioner not disclose case information but allowed her to contact the office of the child advocate or her legislative representative for assistance in the matter. The court also ordered the removal of information posted on the Internet.

On March 13, 2000, the commissioner filed a motion for a contempt finding against the petitioner for violating the confidentiality orders by failing to remove the information posted on the Internet, and adding more information and another picture to a web site on March 4, 2000. On May 9, 2000, the court heard the matter and found the petitioner in wilful contempt of the confidentiality orders. The court continued the hearing until May 23, 2000, to allow the petitioner time to conform to the orders. The court stated that if the petitioner complied with the orders, she would be ordered to pay to the commissioner the sum of $2500 in attorney’s fees pursuant to General Statutes § 52-256b. If she failed to comply, the court would impose a sentence of six months imprisonment. The court continued the matter on May 23, 2000, to June 6, 2000, after hearing testimony from the creator of the Texas based web site on which the information was posted. The court restated the penalties in the event of noncompliance by the June 6, 2000 hearing date.

On June 6,2000, the petitioner filed a motion to vacate the confidentiality order and contempt finding. The court heard testimony from the commissioner and from Alan Brown, a witness for the commissioner, who testified as to technical considerations in removing information from the Internet. The court concluded that the petitioner had complied substantially with the order to remove the information from the Internet and reduced the attorney’s fee award to $750. The petitioner now appeals from the judgment finding her in contempt and ordering her to pay attorney’s fees.

I

The petitioner claims that the court improperly issued the order of confidentiality in violation of her rights under the state and federal constitutions. We disagree.

We recognize at the outset “the presumption of confidentiality of juvenile records . . . .” In re Sheldon G., 216 Conn. 563, 571, 583 A.2d 112 (1990) (discussing legislative history of General Statutes § 46b-124); see also Practice Book § 35-5 (b); General Statutes § 46b-124 (a). The commissioner construes the petitioner’s argument as a claim that Practice Book § 35-5 and General Statutes § 46b-124 are constitutionally infirm. We do not interpret the petitioner’s argument as such. The petitioner claims that the court violated her rights under the first amendment to the United States constitution by virtue of its nondisclosure order, regardless of the statutory authority on which the order is premised.

There is little question that the court’s order constitutes a prior restraint on the petitioner’s first amendment rights. As a restriction imposed on the petitioner’s right to free speech, the order is permissible only if it is narrowly tailored to serve a compelling state interest. See Perry Education Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 45, 103 S. Ct. 948, 74 L. Ed. 2d 794 (1983). A “prior restraint on expression comes . . . with a heavy presumption against its constitutional validity.” (Internal quotation marks omitted.) Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S. Ct. 1575, 29 L. Ed. 2d 1 (1971). Prior restraints are considered “the most serious and the least tolerable infringement on First Amendment rights.” Nebraska Press Assn. v. Stuart, 427 U.S. 539, 559, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976). The potential for encroachment on protected first amendment rights is greater in court-ordered injunctions than with prohibitions contained in criminal statutes. See Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 764, 114 S. Ct. 2516, 129 L. Ed. 2d 593 (1994); see also Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 390, 93 S. Ct. 2553, 37 L. Ed. 2d 669 (1973) (danger in injunctions is speech is suppressed prior to adequate determination of whether speech is protected). To justify an order in the present case, the state must establish a compelling interest for the order and narrowly tailor the order to reach that end. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-607, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982).

The United States Supreme Court has acknowledged that a person’s free speech rights are not without limits, and restrictions imposed on such rights may properly be based on the privacy interests of others. See Rowan v. United States Post Office Dept., 397 U.S. 728, 737-38, 90 S. Ct. 1484, 25 L. Ed. 2d 736 (1970); see also Hill v. Colorado, 530 U.S. 703, 716-17, 120 S. Ct. 2480, 147 L. Ed. 2d 597 (2000). The court has also emphasized the vitality of individual rights to free speech during legal proceedings, such as discovery, but that the right to free speech is not without limit. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34-35, 104 S. Ct. 2199, 81 L. Ed. 2d 17 (1984) (rights of those participating in discovery process remain strong, although considerations such as prevention of discovery abuse and protection of legitimate privacy interests may limit exercise of first amendment rights). Once information is within the public domain, a court may not punish its publication without a justification in the form of a state interest of the highest order. Smith v. Daily Mail Publishing Co., 443 U.S. 97, 103, 99 S. Ct. 2667, 61 L. Ed. 2d 399 (1979); Oklahoma Publishing Co. v. District Court, 430 U.S. 308, 310-12, 97 S. Ct. 1045, 51 L. Ed. 2d 355 (1977).

We conclude that the court properly limited the first amendment rights of the petitioner to disclose information obtained during the course of a custody proceeding. The right to disclose information is not without limit and may be limited by legitimate privacy interests. See Seattle Times Co. v. Rhinehart, supra, 467 U.S. 34-35. The court must “make its own inquiry into the imminence and magnitude of the danger said to flow from the particular utterance and then to balance the character of the evil, as well as its likelihood, against the need for free and unfettered expression. The possibility that other measures will serve the State’s interests should also be weighed.” Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 843, 98 S. Ct. 1535, 56 L. Ed. 2d 1 (1978).

An order of confidentiality involves the confluence of the petitioner’s right to free speech and the juvenile’s right to keep private information learned during closed proceedings. That emphasis on the rights of the juvenile is evident in the statutory presumption of confidentiality accorded such proceedings. We conclude that nondisclosure orders are a necessary part of the confidentiality of juvenile proceedings and that courts are empowered to issue such orders. Although an interest in simply maintaining the anonymity of juveniles is not sufficiently compelling to justify the imposition of fines on newspapers publishing the names of juveniles lawfully obtained; Smith v. Daily Mail Publishing Co., supra, 443 U.S. 104-105; an interest in maintaining the confidentiality of facts disclosed in the course of the juvenile proceedings is sufficiently compelling to justify the prior restraint. The United States Supreme Court has suggested that the use of the contempt proceeding for publication of private facts is permissible as opposed to the impermissible punishment of those who lawfully obtain private facts and subsequently publish the facts. See Landmark Communications, Inc. v. Vir ginia, supra, 435 U.S. 841 n.12; see also Branzburg v. Hayes, 408 U.S. 665, 684, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972). The conclusion that the court may permissibly restrict disclosure of facts learned during the course of juvenile proceedings does not end our inquiry. We now direct our attention to whether the court narrowly tailored the order to serve that interest. See Globe Newspaper Co. v. Superior Court, supra, 457 U.S. 607.

It is evident that the court, in issuing the nondisclosure orders, considered that it could limit only disclosure of information obtained in the course of the proceedings and did not completely restrict the ability of the petitioner to speak out concerning matters that occurred during the proceedings. In the hearing on September 10, 1999, the court, noting e-mail messages on file, stated that “[t]here is an order in effect here that was issued by Judge Holden, and that order stated, keeping in mind . . . what the philosophy, or what the thought is of the state of Connecticut as far as children and their rights to have their matters be kept confidential and private. . . . [Judge Holden] wanted everything to remain confidential. And the rules are veiy clear, that everything is to be maintained within this court.” The court later reminded all parties that “whatever takes place in this room today is confidential, not to be shared outside this room with any third party . . . ,” The court also stated that it could not stop the petitioner from conferring with a child advocate or her legislative representative. It did state, however, that “to go on the Internet or to talk to a newspaper, or to whatever, that is prohibited.” The court also stated: “I’m not making [a] finding that she went to the Internet.” The court also stated: “[F]rom this day forward, there’s no requesting, importuning, urging, advising anyone to make contact with the minor child or the preadoptive family. If that in fact happens from this day on, and you can prove that [the petitioner] was the starting point, then we’ll be back in court on a contempt.” The court continued: “[I]f someone [put the information on the Internet] for you, that puts you in violation of my order as of today.”

The order imposed on the petitioner was narrowly confined to the Juvenile Court proceedings. The court did not restrict the petitioner’s ability to speak freely about matters of which she had prior knowledge. The court also did not absolutely bar any discussion of the proceedings, permitting the petitioner to discuss the proceedings with a child advocate or her legislative representative. The court thus narrowly tailored the order; see Globe Newspaper Co. v. Superior Court, supra, 457 U.S. 607; restricting the nondisclosure order to matters arising in the course of the Juvenile Court proceedings. See Seattle Times Co. v. Rhinehart, supra, 467 U.S. 34-35.

Other courts, presented with similar first amendment concerns, have held court orders compelling parties not to disclose confidential information from juvenile proceedings acceptable when not overbroad. See In re Tiffany G., 29 Cal. App. 4th 443, 451-52, 35 Cal. Rptr. 2d 8 (1994) (holding nondisclosure order against mother, stepfather not to violate first amendment rights) (review denied December 22, 1994); In re Minor, 149 Ill. 2d 247, 255, 595 N.E.2d 1052 (1992) (finding significant juvenile’s interest in privacy during abuse proceeding as predicate for finding court order did not violate respondent’s free speech rights); see also In re J.S., 267 Ill. App. 3d 145, 153-54, 640 N.E.2d 1379 (1994), appeal denied, 159 Ill. 2d 568, 647 N.E.2d 1010 (1995). We conclude that the court did not violate the petitioner’s rights under the first amendment to the United States constitution by issuing its nondisclosure order.

II

The petitioner next claims that the court improperly found her in contempt of the order of nondisclosure. We disagree.

As a result of alleged violations of the nondisclosure order, the commissioner filed a motion for a finding of civil contempt against the petitioner.

“ [0]ur review [of a finding of civil contempt] is technically limited to questions of jurisdiction such as whether the court had authority to impose the punishment inflicted and whether the act or acts for which the penalty was imposed could constitute a contempt. . . . This limitation originates because by its very nature the court’s contempt power . . . must be balanced against the contemnor’s fundamental rights and, for this reason, there exists the present mechanism for the eventual review of errors which allegedly infringe on these rights. . . . We have found a civil contempt to be improper or erroneous because: the injunction on which it was based was vague and indefinite . . . the findings on which it was based were ambiguous and irreconcilable . . . the contemnor’s constitutional rights were not properly safeguarded . . . the penalties imposed were criminal rather than civil in nature . . . and the contemnor, through no fault of his own, was unable to obey the court’s order.” (Internal quotation marks omitted.) Eldridge v. Eldridge, 244 Conn. 523, 527-28, 710 A.2d 757 (1998). A court’s finding of contempt is reviewed under an abuse of discretion standard. Bunche v. Bundle, 36 Conn. App. 322, 324, 650 A.2d 917 (1994).

The petitioner argues that the court did not have an adequate basis on which to find her in civil contempt. She contends that the only evidence considered by the court was the posting of B’s first name on the Internet, the judge’s name and the relevant time frame of the proceeding. The record reveals otherwise.

On the day of the hearing at which the court found the petitioner to be in contempt, the commissioner adduced evidence as to the content of various web sites. One site contained the aforementioned information, but there was also a picture of the child identified by name. The site also identifies the petitioner by name and identifies the child as being “in her care.” Other sites contained detailed information about B, including when she was bom and the proceedings that were initiated by the commissioner. The commissioner asked the court to draw the inference that any information involving confidential juvenile proceedings was garnered from the petitioner directly or from the petitioner through her mother. The petitioner countered that information disclosed could not be retracted; once on the Internet, the information became irretrievable. The court considered that fact in allowing a continuance for two weeks to allow the petitioner to purge the contempt.

We conclude that the court did not improperly find the petitioner in contempt of the order. The order as given was neither unconstitutional nor unclear; see Eldridge v. Eldridge, supra, 244 Conn. 527-28; and the court did not abuse its discretion in finding that the petitioner did not sufficiently conform to the order as given. See Bunche v. Bundle, supra, 36 Conn. App. 324. The court, therefore, did not act improperly.

The court similarly did not act improperly in denying the petitioner’s motion to vacate the confidentiality order. See State v. Rothenberg, 195 Conn. 253, 264, 487 A.2d 545 (1985) (standard of review for court’s denial of motion to vacate judgment is abuse of discretion). The court properly considered the relevant statutory and constitutional provisions in concluding as it did. Accordingly, its denial of the motion was not an abuse of discretion.

The court also did not abuse its discretion in awarding attorney’s fees in the amount of $750. See General Statutes § 52-256b (a); Lord v. Mansfield, 50 Conn. App. 21, 34, 717 A.2d 267 (abuse of discretion proper standard of review), cert. denied, 247 Conn. 943, 723 A.2d 321 (1998). “Sanctions for civil contempt may be either a fine or imprisonment; a fine may be remedial or it may be the means of coercing compliance with the court’s order and compensating the complainant for losses sustained. . . . The fine imposed for a civil contempt may be payable to the complainant as compensation for his loss.” (Internal quotation marks omitted.) Lord v. Mansfield, supra, 34. Our review of the record fails to disclose any abuse of discretion, nor has the plaintiff demonstrated such abuse.

Ill

The petitioner also claims that the court improperly denied her motion to open the courtroom. We disagree.

The proceedings in this case were civil, not criminal, in nature. Juvenile Court proceedings may be closed or open at the court’s discretion. See General Statutes § 46b-122. Section 46b-122 designates the judge overseeing juvenile proceedings as a gatekeeper, keeping out those without a direct interest in the matter.

Unlike criminal courts, which are “presumptively open”; Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 11, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986); competing interests may warrant denial of access to proceedings in some circumstances. United States v. Three Juveniles, 61 F.3d 86, 94 (1st Cir. 1995), cert. denied sub nom. Globe Newspaper Co. v. United States, 517 U.S. 1166, 116 S. Ct. 1564, 134 L. Ed. 2d 664 (1996); see also Globe Newspaper Co. v. Superior Court, supra, 457 U.S. 607-608 (identifying compelling interest in shielding juvenile victims of sex crimes from further trauma, embarrassment). The interests of protecting the privacy interests of a juvenile in the process of adoption satisfies such a compelling interest. See Smith v. Organization of Foster Families for Equality & Reform, 431 U.S. 816, 845, 97 S. Ct. 2094, 53 L. Ed. 2d 14 (1977) (“the liberty interest in family privacy has its source, and its contours are ordinarily to be sought, not in state law, but in intrinsic human rights”); Alma Society, Inc. v. Mellon, 601 F.2d 1225, 1236 (2d Cir.) (acknowledging at least “important interest” in protecting privacy of natural parents in justifying sealing of adoption records), cert. denied, 444 U.S. 995, 100 S. Ct. 531, 62 L. Ed. 2d 426 (1979); M.P. v. Schwartz, 853 F. Sup. 164, 169 (D. Md. 1994) (“there is a compelling governmental concern in preserving the confidentiality of identity of the minor Plaintiff and her family”); see also LaChapelle v. Mitten, 607 N.W.2d 151, 164 (Minn. App.) (compelling interest in “best interests” of child during custody dispute), review denied, cert. denied, 531 U.S. 1011, 121 S. Ct. 565, 148 L. Ed. 2d 485 (2000); Johnson v. Johnson, 134 Ohio App. 3d 579, 585, 731 N.E.2d 1144 (1999) (compelling interest in child’s health, welfare); Common wealth v. Nixon, 563 Pa. 425, 435, 761 A.2d 1151 (2000) (“state’s interest as parens patriae in the very life of an unemancipated minor is a compelling interest”), cert. denied, 532 U.S. 1008, 121 S. Ct. 1735, 149 L. Ed. 2d 659 (2001).

The court did not abuse its discretion in denying the motion to open the proceedings. Its decision is grounded in the statutory mandate of § 46b-122, the constitution of the United States, and relevant privacy concerns pertaining to custody and adoption proceedings. Accordingly, the court did not act improperly in denying the motion.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-256b (a) provides: “When any person is found in contempt of any order or judgment of the Superior Court, the court may award to the petitioner a reasonable attorney’s fee and the fees of the officer serving the contempt citation, such sums to be paid by the person found in contempt.”

       The petitioner claims that the court’s actions violate article first, § 5, of the constitution of Connecticut. The respondent cites to State v. Linares, 232 Conn. 345, 363-87, 655 A.2d 737 (1995), for the proposition that the state constitution “provides greater protection of freedom of speech and of the press than the federal constitution.” That statement with nothing more does not constitute an independent analysis of the state constitutional claim. See id., 379 (setting forth proper considerations provided in State v. Geisler, 222 Conn. 672, 685, 610 A.2d 1225 [1992], for claimed violation under state constitution). We therefore deem abandoned the claim under the state constitution and restrict our review to the claimed violation under the federal constitution.

       Practice Book § 35-5 (b) provides: “All records maintained in juvenile matters brought before the court, either current or closed, including the transcripts of hearings, shall be kept confidential.”

       General Statutes § 46b-124 (a) provides: “All records of cases of juvenile matters, as defined in section 46b-121, except delinquency proceedings, or any part thereof, and all records of appeals from probate brought to the superior court for juvenile matters pursuant to subsection (b) of section 45a-186, including studies and reports by probation officers, social agencies and clinics, shall be confidential and for the use of the court in juvenile matters, and open to inspection or disclosure to any third party, including bona fide researchers commissioned by a state agency, only upon order of the Superior Court .... Any record or any part thereof forwarded by said court or any of its employees to any persons, governmental and private agencies, and institutions, shall not be disclosed, directly or indirectly, to any third party not specified in subsection (c) of this section save upon order of said court or except in the report required under section 54-76d or 54-91a.”

       “The term prior restraint is used to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur. . . . Temporary restraining orders and permanent injunctions — i.e., court orders that actually forbid speech activities — are classic examples of prior restraints.” (Citation omitted; internal quotation marks omitted.) Alexander v. United States, 509 U.S. 544, 550, 113 S. Ct. 2766, 125 L. Ed. 2d 441 (1993).
      It is also important to clarify that we do not interpret the court’s order to have been the issuance of an injunction; rather, it was an order made pursuant to General Statutes § 46b-121 (b) “to secure the welfare, protection, proper care and suitable support of a child or youth subject to its jurisdiction or otherwise committed to or in the custody of the Commissioner of Children and Families. . . .’’As such, it was an order limited to the court proceedings pursuant to § 46b-121 (b) as opposed to an injunction ordered pursuant to General Statutes § 52-471. We find it significant that the court used the terms “order” and “contempt” rather than “eqjoin” or “injunction.” The distinction does not avoid our characterization of the order as a prior restraint.

       The attorney for the petitioner, in response to the commissioner’s oral motion pursuant to Practice Book § 35-1 to preserve the confidentiality of the proceedings on the basis of a concern that confidential information had been passed to a third party, stated: “I think that requires evidence,” to which the court responded: “]W]hether or not it appeared on the Internet is not before me. The motion is that whatever takes place in here is confidential and cannot be shared outside of this room.”

       The commissioner filed her motion for a finding of both criminal and civil contempt pursuant to Practice Book §§ 1-13A, 1-14 and 1-21A. The act ion was taken pursuant to a motion for contempt as compared to the filing of an information, which generally is required for criminal contempt proceedings where the misconduct does not occur in the presence of the court. See Practice Book §§ 1-14, 1-17 and 1-18. The offense was against the privacy rights of B, a party to the action, rather than against the dignity of the court. See Practice Book §§ 1-14, 1-21A. We conclude that the claim was therefore one of civil contempt, not criminal contempt.

       General Statutes § 46b-122 provides in relevant part: “All matters which are juvenile matters . . . shall be kept separate and apart from all other business of the Superior Court as far as is practicable .... Any judge hearing a juvenile matter shall, during such hearing, exclude from the room
        in which such hearing is held any person whose presence is, in the court’s opinion, not necessaiy . . . .”