author: DUPONT, J.

text:
    CYPRIANO MUNIZ ET AL. v. HENRY R. KRAVIS ET AL.
    (AC 18356)
    Schaller, Heimessy and Dupont, Js.

      Argued May 30
    officially released September 5, 2000

      David J. Ordway, for the appellant (plaintiff Mercedes Muniz).

      Harold R. Burke, for the appellees (defendants).
   Opinion

DUPONT, J.

The plaintiff Mercedes Muniz appeals from the judgment of the trial court rendered following the granting of the defendants’ motion to strike the plaintiffs amended complaint. On appeal, the plaintiff claims that the court improperly determined that she failed to demonstrate the requisite elements of a cause of action for (1) intentional infliction of emotional distress, as claimed in count three of the amended complaint, and (2) unfair trade practices pursuant to the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., as claimed in count eight of the amended complaint. We affirm the judgment of the trial court.

The relevant allegations of the plaintiffs amended complaint follow. The defendants Henry R. Kravis and Caroline Roehm were officers of the defendant Weath-erstone Corporation. The business of the corporation was carried on at a location referred to as Weath-erstone, where business partners, colleagues and associates of Kravis were entertained. The plaintiff was an employee of the defendants, as was her husband. They worked as a butler and cook at Weatherstone. Their employment compensation included a salary and the use of a private apartment on the premises of Weath-erstone, in which they and their minor daughter resided. At all relevant times, the plaintiff performed her duties in a satisfactory manner.

In July, 1993, an armed security guard working for the defendants came to the plaintiffs apartment to notify the plaintiff and her husband that their employment with the defendants was terminated, effective immediately, and that they must vacate the apartment within twenty-four hours. At the time of the notification, the plaintiff was en route to Spain to take a vacation with her daughter. Cypriano Muniz was at the apartment recovering from a planned and scheduled medical surgery performed the previous day. One month prior to this notification, the defendants represented to the plaintiff that her job was not threatened by an impending legal separation or dissolution of the defendants’ marriage. In reliance on this representation, the plaintiff did not seek other employment or housing. As a result of the defendants’ conduct, the plaintiff suffered a loss of income and earnings, economic losses such as loss of lodging and food, and emotional distress and anguish.

This appeal concerns only the trial court’s decision granting the defendants’ motion to strike the third count of the plaintiffs amended complaint seeking damages for intentional infliction of emotional distress and the eighth count of the plaintiffs amended complaint seeking damages for unfair trade practices.

“We begin by setting out the well established standard of review in an appeal from the granting of a motion to strike. Because amotion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court’s ruling ... is plenary. See Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 232-33, 680 A.2d 127 (1996) [cert. denied, 520 U.S. 1103, 117 S. Ct. 1106, 137 L. Ed. 2d 308 (1997)]. ... We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. Bohan v. Last, 236 Conn. 670, 674, 674 A.2d 839 (1996); see also Mingachos v. CBS, Inc., 196 Conn. 91, 108-109, 491 A.2d 368 (1985). Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. Waters v. Autuori, 236 Conn. 820, 826, 676 A.2d 357 (1996). . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted. . . . Amodio v. Cunningham, 182 Conn. 80, 83, 438 A.2d 6 (1980).” (Citations omitted; internal quotation marks omitted.) Doe v. Yale University, 252 Conn. 641, 667-68, 748 A.2d 834 (2000).

I

We first consider the plaintiffs claim that the court improperly granted the motion to strike as to the third count of her complaint, which asserted a claim for intentional infliction of emotional distress. The elements of such a cause of action are well settled. For the plaintiff to prevail on a claim of intentional infliction of emotional distress, four elements must be established. “It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiffs distress; and (4) that the emotional distress sustained by the plaintiff was severe. . . . Petyan v. Ellis, 200 Conn. 243, 253, 510 A.2d 1337 (1986).” (Internal quotation marks omitted.) Appleton v. Board of Education, 53 Conn. App. 252, 265, 730 A.2d 88, cert. granted on other grounds, 249 Conn. 927, 733 A.2d 847 (1999). “Liability for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind.” (Internal quotation marks omitted.) Ancona v.Manafort Bros., Inc., 56 Conn. App. 701, 712, 746 A.2d 184, cert. denied, 252 Conn. 954, 749 A.2d 1202 (2000). All four elements must be established to prevail on a claim for intentional infliction of emotional distress. Reed v. Signode Corp., 652 F. Sup. 129, 137 (D. Conn. 1986); see also Petyan v. Ellis, supra, 254.

We conclude that the court properly held that the plaintiff in this case failed to allege sufficient facts to establish one of the elements of her claim for intentional infliction of emotional distress, namely, that the defendants’ conduct was extreme and outrageous. In support of her claim that the defendants’ conduct was extreme and outrageous, the plaintiff alleged that the defendants had sent an ar med security guard to notify her and her husband of their termination of employment and had given them only twenty-four hours to leave the premises. This happened at a time when the plaintiff was on vacation and when her husband was recovering from a planned surgery. The plaintiff claimed that this caused her great emotional distress and anguish. While there are no Connecticut cases with facts exactly similar to those in this case, it is clear that there is liability only for “conduct exceeding all bounds usually tolerated by decent society . . . .” Petyan v. Ellis, supra, 200 Conn. 254 n.5.

In a case involving a claim for negligent infliction of emotional distress, as opposed to intentional infliction of emotional distress, in which it was alleged that the plaintiff’s employment was terminated with two hours notice and that the plaintiff employee was escorted from the workplace by a security guard, the allegations were found to be insufficient to support the cause of action. Parsons v. United Technologies Corp., 243 Conn. 66, 89, 700 A.2d 655 (1997). The elements of negligent and intentional infliction of emotional distress differ as to the state of mind of the actor and not to the conduct claimed to be extreme and outrageous. Parsons, therefore, is instructive because the conduct alleged in the complaint in that case, even though it did not involve the right to occupy an apartment, is virtually identical to the conduct alleged to have been extreme and outrageous in the present case.

Here, the court relied on several cases from other jurisdictions with similar facts to conclude that the facts alleged by the plaintiff did not amount to conduct that was extreme and outrageous. See Cox v. Keystone Carbon Co., 861 F.2d 390, 396 (3d Cir. 1988) (employee’s termination on day he returned to work after triple bypass surgery did not constitute extreme and outrageous conduct); Freeman v. Kansas State Network, Inc., 719 F. Sup. 995, 1000 (D. Kan. 1989) (termination of plaintiffs employment three days after she gave birth and on day she returned home from hospital did not constitute extreme and outrageous conduct).

In this case, it is not alleged that the defendants or their security guard threatened the plaintiff or acted in a derogatory or demeaning manner toward her. As previously noted, the plaintiff was not present when the security guard came to notify her of the termination of her employment. “The mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior”; (internal quotation marks omitted) Parsons v. United Technologies Corp., supra, 243 Conn. 89; and does not give rise to a claim for the negligent infliction of emotional distress. Furthermore, while the fact that the plaintiff was losing the right to use her apartment, in addition to being terminated from her employment, may have made the defendants’ conduct more distressing to the plaintiff, that fact fails to establish that the defendants’ conduct was extreme and outrageous. Because the occupation of the apartment was incidental to the employment and was presumably arranged because it was convenient for the purpose of employment, it is difficult to separate the termination of the employment from the termination of the occupancy. We conclude that the allegations of count three of the plaintiffs amended complaint are insufficient to allege a cause of action for intentional infliction of emotional distress.

II

We next consider whether the court properly granted the defendants’ motion to strike the plaintiffs CUTPA claim. The plaintiffs amended complaint alleged that the acts of the defendants constituted unfair trade practices in violation of CUTPA. To state a claim under CUTPA, the plaintiff must allege that the actions of the defendant were performed in the conduct of “trade or commerce.” General Statutes § 42-110b; Quimby v. Kimberly Clark Corp., 28 Conn. App. 660, 669, 613 A.2d 838 (1992). The trial court properly held that an employment relationship does not constitute trade or commerce for purposes of CUTPA. See id., 670.

The plaintiff, however, alleges that she had a landlord-tenant relationship with the defendants pursuant to the Landlord and Tenant Act (act), General Statutes § 47a-1 et seq., and thus falls within the scope of CUTPA. The plaintiff does not claim that she was wrongfully evicted or that any statute relating to summary process was violated. She limits her claim to the assertion that the allegations of count eight of her complaint state a cause of action for a CUTPA violation, and she seeks damages for that violation.

We begin our analysis by observing that the events that are alleged to have occurred took place in 1993. The plaintiff cites General Statutes § 47a-30, claiming that it specifically provides for the protection of an individual’s rights to due process when an employment relationship gives rise to a tenancy. The language of § 47a-30 refers to “any domestic servant” as described in General Statutes § 47a-36. That statute refers to domestic servants “to whom the [dwelling] space is provided as part or all of their compensation and who are employed for the purpose of rendering services in connection with the premises of which the dwelling space is a part . . . .” The language in § 47a-30 referring to “any domestic servant ... as described in subsection (b) of section 47a-36,” however, was added to the statute in 1995 pursuant to Public Acts 1995, No. 95-247, § 4, after the events with which we are concerned. Also, § 47a-30 relates to the eviction of domestic servants when such servants have failed to vacate the premises in which they are residing after employment has been terminated, and § 47a-36 applies to occupancies to which the stay of execution provisions are inapplicable. We, therefore, do not consider those statutory provisions as relevant to our decision in this case.

“Whether the defendant is subject to CUTPA is a question of law, not fact.” Connelly v. Housing Authority, 213 Conn. 354, 364-65, 567 A.2d 1212 (1990). This review concerns statutory construction and the application of the statutes to the allegations of the plaintiffs complaint to determine if the plaintiff has stated a cause of action. Statutory construction involves a review of the words used in the statute, the legislative history and policy background of the statute and the relationship of the statute to existing legislation and common-law principles relating to the same general subject matter. Babcock v. Bridgeport Hospital, 251 Conn. 790, 819, 742 A.2d 322 (1999). The plaintiff alleges that she is a tenant within the meaning of the act because she occupied a dwelling owned by the defendant to the exclusion of all others pursuant to a rental agreement and, as such, has a cause of action under CUTPA.

General Statutes § 42-110a (4) defines “trade” or “commerce” to include “the sale, or rent or lease . . . of any . . . property . . . real, personal or mixed . . . .” Our Supreme Court has held that a private cause of action exists under CUTPA for a violation of the statutes governing landlords and tenants. Conaway v. Prestia, 191 Conn. 484, 491, 464 A.2d 847 (1983) (renting of uninhabitable apartments to fifty-five tenants in four apartment buildings without certificates of occupancy offended public policy and was within purview of CUTPA). The relevant question for our review, therefore, is whether the court properly concluded that the plaintiff failed to allege facts to support the existence of a tenancy relationship cognizable under CUTPA.

In determining whether a practice violates CUTPA we use the criteria of whether a practice offends public policy or comes within some established concept of unfairness, whether the practice is immoral, unethical, oppressive or unscrupulous or whether it causes substantial injury to consumers, competitors or other businessmen. Associated Investment Co. Ltd. Partnership v. William Associates IV, 230 Conn. 148, 155, 645 A.2d 505 (1994); Daddona v. Liberty Mobile Home Sales, Inc., 209 Conn. 243, 254, 550 A.2d 1061 (1988).

CUTPA embraces a broader standard of conduct more flexible than traditional common-law claims and does not require proof of intent to deceive, to mislead or to defraud. Associated Investment Co. Ltd. Partnership v. William Associates IV, supra, 230 Conn. 158. A violation may be established by showing either an actual deceptive practice or a practice that violates public policy. Id., 156.

Section 47a-l (1) defines a “tenant” as a “person entitled under a rental agreement to occupy a . . . premises to the exclusion of others or as is otherwise defined by law.” Not every person occupying premises to the exclusion of others does so pursuant to a rental agreement as defined in § 47a-l (1). When premises are occupied pursuant to an employment agreement, the existence of a lease is not necessarily proven nor is a tenancy established. See Catropa v. Bargos, 17 Conn. App. 285, 290, 551 A.2d 1282, cert. denied, 210 Conn. 811, 556 A.2d 609 (1989).

The relationship of the plaintiff and the defendants does not, according to the allegations of the plaintiffs amended complaint, indicate that the use and occupancy of the apartment was anything other than incidental to and allowed for the purpose of the plaintiffs employment. In fact, the allegations indicate that the use and occupancy of the apartment was given only for the purpose of the employment. See Guiel v. Barnes, 100 Conn. 737, 740-43, 125 A. 91 (1924). Such an arrangement is not necessarily a tenancy but may be a license in real property. A license in real property is a personal, revocable and unassignable privilege to enter land for a limited purpose without giving rise to any possessory interest in the land, which allows an exercise of the right only within the scope of the consent given. State v. Allen, 216 Conn. 367, 380, 579 A.2d 1066 (1990). It may be an exclusive right, not possessed by others. State v. Grant, 6 Conn. App. 24, 30, 502 A.2d 945 (1986). Unlike a lease, a license in real property is the privilege to act on the land of another, without obtaining any interest in the property. Clean Corp. v. Foston, 33 Conn. App. 197, 203, 634 A.2d 1200 (1993).

There is no Connecticut case other than Guiel that discusses the law concerning a situation in which an individual is employed and occupies a dwelling on premises incidental to the employment. Other jurisdictions, however, have resolved the question of whether a tenancy arises. The general rule is that when the occupancy is incidental to the employment, the relationship is not that of landlord and tenant. Moreno v. Stahmann Farms, Inc., 693 F.2d 106, 107 (10th Cir. 1982); Kwong v. Guido, 129 Misc. 2d 211, 212, 492 N.Y.S.2d 678 (Civ. Ct. 1985); Dobson Factors, Inc. v. Dattory, 80 Misc. 2d 1054, 1055, 364 N.Y.S.2d 723 (Civ. Ct. 1975); Huus v. Ringo, 76 N.D. 763, 772, 39 N.W.2d 505 (1949); Eaton v. R. B. George Investments, 254 S.W.2d 189, 196 (Tex. Civ. App. 1951), rev’d on other grounds, 152 Tex. 523, 260 S.W.2d 587 (1953). The right to occupy the premises ceases when the employment terminates. Miracle v. Stewart, 278 Ky. 158, 163, 128 S.W.2d 613 (1939).

The plaintiff has not alleged a rental agreement embodying the terms and conditions concerning the use and occupancy of the dwelling unit. Except for the allegation that she was given the use of a private apartment on the defendants’ premises as part of her compensation as a cook, nothing is alleged as to any condition of the arrangement. There is no allegation as to the amount of “rent” paid by the plaintiff or that the value of the occupancy is deducted from wages otherwise due. Furthermore, the plaintiff has not alleged any injury to consumers, competitors or other businessmen or that any public interest was thwarted. Federal Trade Commission v. Sperry & Hutchinson Co., 405 U.S. 233, 244-45 n.5, 92 S. Ct. 898, 31 L. Ed. 2d 170 (1972). Nor has the plaintiff alleged a deceptive practice or specified how CUTPA was violated.

Not every relationship, even assuming a landlord-tenant one, comes within the terms of CUTPA. There must be some nexus with a public interest, some violation of a concept of what is fair, some immoral, unethical, oppressive or unscrupulous business practice or some practice that offends public policy. We cannot find such allegations in the plaintiffs complaint. We conclude that the allegations of the plaintiff in count eight of her complaint are insufficient to allege a cause of action under CUTPA.

The judgment is affirmed.

In this opinion the other judges concurred.

       The appeal was withdrawn as to the named plaintiff, Cypriano Muniz. We refer in this opinion to the plaintiff Mercedes Muniz as the plaintiff.

       The court struck all of the counts of the plaintiffs amended complaint with the exception of count seven, which the plaintiff has since withdrawn. The plaintiffs claims on appeal relate only to counts three and eight of the amended complaint. The plaintiff does not challenge the trial court’s decision to strike the other five counts.

       Caroline Roehm, formerly Caroline Kravis, was married to Henry Kravis at the time of the events relevant to this appeal.

       No claim is made by the plaintiff arising from the intentional infliction on her of emotional distress because of the defendants’ treatment of her husband. See Agis v. Howard Johnson Co., 371 Mass. 140, 146-47, 355 N.E. 2d 315 (1976).


source: Caselaw Access Project

author: HEALEY, J.

license: Public Domain

text:
    BARRY M. JACOBS v. JOSEPH FAZZANO ET AL.
    (AC 19357)
    Foti, Spear and Healey, Js.
    Argued May 4
    officially released September 5, 2000

      Patrick Tomasiewicz, for the appellants (defendants).

      Dana P. Lonergan, for the appellee (plaintiff).
   Opinion

HEALEY, J.

This is an appeal by the defendants from the granting of a petition for a new trial, pursuant to General Statutes § 52-270, to the plaintiff. Thereafter, the trial court sustained the plaintiffs objection to the defendant’s motion to arrest its judgment granting the new trial. This appeal followed. We reverse the judgment granting the new trial.

Certain background circumstances will put the issues and circumstances into perspective for our analysis and discussion. The plaintiff, Barry Jacobs, a physician, commenced the present action against Joseph Fazzano and Elizabeth McKeman in May, 1996, seeking a new trial in Fazzano v. Malpractice Research, Inc., Superior Court, judicial district of Hartford, Docket No. 0388211 (underlying action). The substance of the underlying action was alleged to be a contract between McKeman through her attorney, Fazzano, and Jacobs and Malpractice Quality Foundation, Inc. (MQF), pursuant to which Jacobs and MQF agreed to provide Nicholas Criares to testify as an expert medical witness in McKernan’s medical malpractice case against Hartford Hospital and Richard Jones. In the underlying action, McKernan and Fazzano claimed essentially that Jacobs failed to ensure that Criares appear and testily at McKeman’s trial and that as a result of this alleged breach of contract, McKer-nan was forced to settle her case for a figure less than its actual value and that Fazzano received a reduced attorney’s fee.

In February, 1991, attorney Dana Lonergan filed an appearance for Jacobs and MQF in the underlying action. He filed an answer that denied the allegation of the complaint generally and a special defense effectively alleging that McKeman and Fazzano had violated their contract by failing to pay Criares’ fee in advance of his testimony. On May 4, 1993, Lonergan moved to withdraw as attorney for Jacobs and MQF “for the reason that said defendants have advised the undersigned counsel [Lonergan] that they no longer wish to defend [the underlying action].” Thereafter, Lonergan withdrew from the case. On May 17, 1993, Jacobs filed a pro se appearance for the defendants Barry Jacobs and MQF “in lieu of the appearance of ‘Dana P. Lonergan.’ ” On this pro se appearance, Jacobs gave his “mailing address” as “112 Elden Street, Suite K, Herndon, VA. 22070.”

On April 19,1994, a pretrial hearing in the underlying action was held in Hartford before Judge Douglass B. Wright. Present at that pretrial were attorney Stephen F. McEleney, who appeared for the plaintiffs, and Criares, who appeared for himself. Jacobs was not present. McEleney called from the courthouse a number he had for MQF and he eventually got Jacobs on the telephone.

The trial court found the following facts concerning McEleney’s telephone conversation with Jacobs at that time: “Jacobs said he had moved his office from Virginia to Route 2, Box 642E, Summerland Key, Florida, 33042, and had not received the pretrial notice from the court. Attorney McEleney told Jacobs that it was his responsibility to notify the court of his change of address, that a default would enter against him and that he should proceed from there. McEleney also said he would inform a court clerk why Jacobs was not there but did not assure Jacobs that the clerk would enter his new address on the court file.”

On May 16, 1994, McEleney claimed the case for a hearing in damages. He sent that claim to Jacobs’ address in Herndon, Virginia, which Jacobs had set out in his pro se appearance on file. McEleney thought that he was “obligated to send [the hearing in damages claims slip] to the address on Jacobs’ appearance, filed in court . . . rather than to an address given to me [McEleney] over the telephone.” The court also sent notice of the date of the hear ing in damages to Jacobs’ Virginia address. Jacobs had not amended his pro se appearance to reflect his new address and he did not receive notice of the hearing in damages.

On July 8, 1994, the hearing in damages was held before Judge Norris O’Neill. A judgment was entered against Jacobs and MQF in the amount of $320,000 plus attorney’s fees in the amount of $16,000. A judgment was also entered against Criares in the amount of $2000 by agreement.

Jacobs first learned of the judgment against him in August, 1995, when Fazzano and McKernan sought to attach his assets and to garnish his income. Jacobs, however, did not immediately seek to open the Connecticut judgment. He did, however, contact the Florida attorney who had handled his chapter 7 bankruptcy, which he had filed in February, 1992, in the United States District Court for the Southern District of Florida to seek to open that bankruptcy so as to include the Connecticut judgment against him and to have that debt discharged. Jacobs’ bankruptcy attorney in Florida did file a petition in the Florida bankruptcy court seeking to have the earlier chapter 7 discharge, which he had obtained, amended to cover this Connecticut judgment. Jacobs’ petition was denied by the bankruptcy court in Florida in April, 1996. Jacobs then contacted Lonergan, and the present action to set aside the Connecticut judgment and for a new trial was instituted by Jacobs in May, 1996.

In its decision, the trial court found that Jacobs had established that he did not receive actual notice of the hearing in damages, which resulted in the judgment against him, and also that he had a just defense. That court, however, found that Jacobs’ not receiving actual notice was his own fault. It went on to find that Jacobs filed his pro se appearance with his Virginia address and that when he moved to Florida several months later, he did not inform the court of his new address. Moreover, the trial court continued, “even after [Jacobs] was told by attorney McEleney over the phone on the date of the pretrial that a default was likely to enter against him, [Jacobs] did nothing to protect himself.” The trial court stated further that “[n]or should [Jacobs] have relied upon attorney McEleney to inform the court of his Florida address.” Although acknowledging that Jacobs had established “two of [the] criteria” of § 52-270, i.e., the lack of actual notice and a just defense, the court said that “[Jacobs] still is not entitled to the relief afforded by the statute because of his own negligence and deliberate disregard for any responsibility he had as a defendant in the Fazzano case. In effect, he thumbed his nose at this court and acted as if he were immune from the exercise of its powers.” (Emphasis added.)

The trial court, however, then noted that there was a third “criterion” under § 52-270, that of “other reasonable cause.” Citing Wetzel v. Thorne, 202 Conn. 561, 565, 522 A.2d 288 (1987), it opined that the basic test of “reasonable cause” was “whether or not the litigant had been deprived of a fair opportunity to be heard and that an injustice will occur if a new trial is not allowed,” and, quoting Black v. Universal C.I.T. Credit Corp., 150 Conn. 188, 193, 187 A.2d 243 (1962), stated that “ ‘[t]he statute [§ 52-270] . . . applies only “when no other remedy is adequate” and when in equity and good conscience relief against a judgment should be granted.’ ” The trial court then decided that the circumstance of this case did not invoke equity and good conscience. Pointing out that McEleney had told a clerk of the court of Jacobs’ Florida address on the day that he learned of it from Jacobs, the trial court indicated that “[w]hile the clerk’s office may not be permitted to change addresses on notices of appearance without a writing, the clerk should have made some notification in the computer that might have directed further court notices to both addresses.” It also said that “[likewise, while attorney McEleney was within the rules in sending the claim for the hearing in damages to Jacobs’ address on his pro se appearance, fairness and common sense required he also send it to Jacobs’ new Florida address. His failure to do so gives rise to the inference that he contributed to notice not being received by Jacobs of the hearing in which the judgment of $336,000 was awarded and to Jacobs not having the opportunity to interpose his defense.” The trial court then concluded that “equity and good conscience require that, pursuant to § 52-270, the judgment in the underlying action be set aside as to Jacobs only and he be granted a new trial.”

McKernan and Fazzano now claim that the trial court acted improperly in granting Jacobs’ petition for a new trial and in denying their motion in arrest of judgment. Specifically, they claim that the trial court’s conclusion that reasonable cause existed pursuant to § 52-270 to justify setting aside the underlying judgment and granting a new trial involved the misapplication of relevant law. In addition, they claim that the trial court’s conclusion that Jacobs did not have a reasonable opportunity to interpose a defense and that McEleney was required to mail the plaintiff notice of the claim of the hearing in damages to an address not set out in Jacobs’ pro se appearance are inconsistent with the subordinate facts which it found. We reverse the judgment of the trial court.

“A petition for a new trial under § 52-270 is a proceeding essentially equitable in nature. . . . It is authorized, and its scope is limited, by the terms of the statute.” (Citations omitted.) Black v. Universal C.I.T. Credit Corp., supra, 150 Conn. 192; see Bleidner v. Searles, 19 Conn. App. 76, 78, 561 A.2d 954 (1989). “ ‘The salutary purpose of the statute is that if a party has a meritorious defense and has been deprived of reasonable opportunity to present it, he ought to be permitted to make it upon another trial.’ Bellonio v. Thomas Mortgage Co., 111 Conn. 103, 105, 149 A. 218 [1930].’ ” Krooner v. State, 137 Conn. 58, 60, 75 A.2d 51 (1950); E. M. Loew’s Enterprises, Inc. v. Surabian, 146 Conn. 608, 612, 153 A.2d 463 (1959). “General Statutes § 52-270 sets forth the limited circumstances in which a new trial will be granted. The petitioner [for a new trial] has the burden of proving by a preponderance of the evidence that he is entitled to a new trial on the grounds claimed. Johnson v. Henry, 38 Conn. Sup. 718, 719-20, 461 A.2d 1001, cert. denied, 464 U.S. 1011, 104 S. Ct. 533, 78 L. Ed. 2d 714 (1983).” Bleidner v. Searles, supra, 78. “A petition for a new trial [under § 52-270] is addressed to the discretion of the trial court and will never be granted except upon substantial grounds. As the discretion which the court is called upon to exercise is not an absolute but a legal one, we will upon appeal set aside its action when it appears that there was a misconception on its part as to the limits of its power, that there was error in the proceedings preliminary to the exercise of its discretion, or that there was clear abuse in the exercise of its discretion. . . .’ E. M. Loew’s Enterprises, Inc. v. Surabian, [supra, 610].” Kubeck v. Foremost Foods Co., 190 Conn. 667, 669-70, 461 A.2d 1380 (1983). In determining whether there has been such an abuse of discretion, as McKernan and Fazzano claim, an appellate court must make every reasonable presumption in favor of the correctness of the trial court’s exercise of its discretion. Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 809, 695 A.2d 1010 (1997); E. M. Loew’s Enterprises, Inc. v. Surabian, supra, 610. “Although General Statutes § 52-270 permits the court to grant a new trial upon proof of reasonable cause, the circumstances in which reasonable cause may be found are limited. Wetzel v. Thorne, 202 Conn. 561, 565, 522 A.2d 288 (1987). The basic test of reasonable cause is whether a litigant, despite the exercise of due diligence, has been deprived of a fair opportunity to have a case heard on appeal. . . . A new trial may be granted to prevent injustice in cases where the usual remedy by appeal does not he or where, if there is an adequate remedy by appeal, the party has been prevented from pursuing it by fraud, mistake or accident. Krooner v. State, [supra, 60].” (Emphasis added; internal quotation marks omitted.) Bleidner v. Searles, supra, 78-79; see Hryniewicz v. Wilson, 51 Conn. App. 440, 445, 722 A.2d 288 (1999).

“Due diligence is a necessary condition to success in prosecuting a petition for a new trial.” Crook v. Clark, 124 Conn. 317, 318, 199 A. 428 (1938). Under § 52-270 “the exercise of due diligence is a condition precedent to a finding of reasonable cause.” Hryniewicz v. Wilson, supra, 51 Conn. App. 446. “ ‘Reasonable’ is a relative term which varies in the context in which it is used, and its meaning may be affected by the facts of the particular controversy. . . . It is also synonymous with ‘[e]quitable, fair, just.’ ” (Citation omitted.) A1. M. Loew’s Enterprises, Inc. v. Surabian, supra, 146 Conn. 612. “[Section 52-270] does not furnish a substitute for, nor an alternative to, an ordinary appeal, but applies only ‘when no other remedy is adequate’ and when in equity and good conscience relief against a judgment should be granted.” Black v. Universal C.I.T. Credit Corp., supra, 150 Conn. 193; Krooner v. State, supra, 137 Conn. 60.

In our analysis, we turn initially to the trial court’s determination that although Jacobs had established two of the criteria of § 52-270, namely, the lack of actual notice and the existence of a just defense, it pointed out that Jacobs was, nevertheless, not entitled to a new trial because of his own “negligence” and his “deliberate disregard” for any responsibility he had as a defendant in the underlying action. Yet, the trial court, referring to the “third criteria” of § 52-270, namely, “other reasonable cause,” decided that “equity and good conscience” warranted a new trial. In ordering a new trial, it decided that while the clerk’s office “may not be permitted” to change addresses on appearances without a writing, the clerk “should have made some notification in the computer that might have directed further court notices [to both addresses.]” (Emphasis added.) It also decided that while McEleney “was within the rules” in sending the claim for the hearing in damages to Jacobs’ Virginia address listed on his pro se appearance, “fairness and common sense” required that he also send it to Jacobs’ new Florida address and that that “failure,” on McEle-ney’s part, gave rise to the inference that he “contributed” to Jacobs’ not only not receiving notice of the hearing in which the judgment was awarded but also to Jacobs’ not having the opportunity to present his defense. Thus, concluded the trial court, equity and good conscience required a new trial. We do not agree and find that the trial court clearly abused its discretion in ordering a new trial under § 52-270.

Although the trial court found that Jacobs did not receive actual notice and was deprived of the opportunity to present his valid defense, it then inconsistently found that he was not entitled to relief because of his negligence and “deliberate disregard” for any responsibility he has as a defendant in the underlying action, but was entitled to relief under the “other reasonable cause” criterion, folding in its invocation to equity and good conscience reasoning. This conclusion totally overlooks the requisite that the party seeking the new trial and not the other party or his attorney in the underlying action, is required to exercise due diligence as a condition precedent to obtaining relief under § 52-270. “Due diligence does not require omniscience. Due diligence means doing everything reasonable, not everything possible.” (Internal quotation marks omitted.) Kubeck v. Foremost Foods Co., supra, 190 Conn. 672. Jacobs, a pro se plaintiff, was on notice, after speaking to McEleney, that there would probably be further proceedings on the underlying action, and yet he did nothing to inform the clerk’s office of his Florida address. “Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural . . . law.” Zanoni v. Hudon, 42 Conn. App. 70, 77, 678 A.2d 12 (1996). His was the duty to exercise due diligence; that duty was not in any part upon McEleney or his client. Moreover, the case law that the demonstration of due diligence rests on the petitioner for a new trial, applies to entitlement to that relief under the whole statute, including the “other reasonable cause” provision.

Jacobs cannot seriously question the finding that he was negligent. After filing his pro se appearance, he never filed any additional documents with or inquired at all of the Hartford Superior Court. Jacobs claims that he always wanted the opportunity to try the case. He attempted at trial to gainsay the statement in his counsel’s motion to withdraw of May 4,1993, in the underlying action that “[Jacobs and MQF] no longer wish to defend this matter” as an error. Jacobs maintained that the motion should have read that “[Jacobs and MQF] no longer wish you [the withdrawing counsel] to defend this matter.” Yet, Jacobs did not consult or retain Connecticut counsel until May, 1996. Jacobs, in seeking relief from the Connecticut judgment, deliberately ignored this jurisdiction and sought to open his closed bankruptcy action in the federal court in Florida for the purpose of including, and to be discharged of, the Connecticut judgment. That effort proved unsuccessful.

The burden of showing due diligence rested solely and throughout on the plaintiff. The trial court enigmatically found that McEleney was “within the rules” in sending the notice of hearing to Jacobs’ address on his pro se appearance and yet it noted that McEleney’s failure to send it to Jacobs’ Florida address “contributed” to Jacobs’ not receiving notice. Jacobs argues that a purpose of our mies of practice insofar as pleadings are concerned is to afford notice of various stages of the proceedings in an action and that he should have been given notice at his Florida address of the hearing in damages. He gives, however, no authority, rule or statute for that claim. Furthermore, Jacobs cannot and does not attack the finding that McEleney was “within the mies” in not sending notice to the Florida address. More to the point, the trial court itself cites no mle or authority of any sort that required McEleney to forward the notice to Jacobs’ Florida address nor that the clerk “should have” made some notification on his computer of the Florida address. As we have said, “[ejither we adhere to the mies or we do not adhere to them.” Osborne v. Osborne, 2 Conn. App. 635, 639, 482 A.2d 77 (1984). McEleney was “within the rules” and, in the absence of any contrary authority, we are fairly entitled to presume that the clerk acted likewise.

It is evident from what we have stated that the trial court made conclusions that were inconsistent with the subordinate facts found and they cannot stand. See Delfino v. Vealencis, 181 Conn. 533, 543, 436 A.2d 27 (1980); see also Boland v. Catalano, 202 Conn. 333, 337-38, 521 A.2d 142 (1987). The trial court found that Jacobs was negligent and deliberately disregarded his responsibility as a defendant in the underlying case. It also, in effect, found that he had exercised due diligence, or at the very least, so much as it felt Jacobs had to. Yet, at the same time, the trial court held that although McEleney was “within the rules” in not mailing the hearing in damages notice to Florida, his “failure” to do this “contributed” to the entry of the judgment award against Jacobs. Paradoxically, the trial court effectively imposed some duty on McEleney, without any citation of authority and in using terms sounding in negligence, i.e., “failure,” which somehow “contributed” to the Jacobs judgment. In a word, there was no such duty on that attorney. Moreover, the trial court improperly implied that the proof of the exercise of due diligence is not totally on Jacobs, but at least in some part on McEleney. Such conclusions cannot stand and are themselves improper.

Despite the fact that the trial court concluded that the petitioner had not demonstrated that he was entitled to a new trial under the first two criteria, it nevertheless went on and decided that he was entitled to a new trial under the third criterion of § 52-570, that of “other reasonable cause.” It did so because it concluded that the circumstances of this case did invoke equity and good conscience and satisfied the “other reasonable cause” criterion of § 52-270. We do not agree and conclude that the trial court clearly abused its discretion in granting such relief.

In coming to that conclusion, the court pointed out that the clerk “should have made” some notification on his computer that “might have directed notices to both [Jacobs’ Virginia and Florida addresses.]” It also indicated that because McEleney was already in possession of Jacobs’ Florida address and although he acted “within the mies” in sending the hear ing notice only to Jacobs’ Virginia address, “fairness and common sense” required that he also send it to Jacobs’ new Florida address. His “failure” to do so, the court went on, contributed ultimately to the judgment against Jacobs in the underlying action. The trial court does not, however, go further and discuss the circumstances of Jacobs’ conduct throughout, including his failure to exercise due diligence. This must be considered, if for no other reason than that “[o]ne who seeks equity must also do equity and expect that equity will be done for all.” LaCroix v. LaCroix, 189 Conn. 685, 689, 457 A.2d 1076 (1983); see Lesser v. Lesser, 134 Conn. 418, 426, 58 A.2d 512 (1948). Cast in more earthy terms, “ ‘[e]quity is a two-way street and must be recognized as such wherever the court employs equity to resolve a dispute. Jerry Harmon Motors, Inc. v. Heth, 316 N.W.2d 324, 329 (N.D. 1982).’ ” Hackett v. Hackett, 42 Conn. Sup. 36, 53, 598 A.2d 1112, aff'd, 26 Conn. App. 149, 598 A.2d 1103 (1991), cert. denied, 221 Conn. 905, 600 A.2d 1359 (1992).

“The term ‘equity’ denotes the spirit and habit of fairness, justness and right dealing which would regulate the intercourse [between individuals]. Black’s Law Dictionary (6th Ed. 1990).” Krasowski v. Fantarella, 51 Conn. App. 186, 199, 720 A.2d 1123, cert. denied, 247 Conn. 961, 723 A.2d 815 (1998). The term “conscience” means “the sense of right or wrong . . . together with a feeling of obligation to do or be that which is recognized as good. . . .” Webster’s Third New International Dictionary. Pomeroy indicates that, in the evolution of the law of equity, “conscience” came to mean “practically the same as ‘equity.’ ” 2 J. Pomeroy, Equity Jurisprudence (5th Ed. 1941) §§ 57, 58. Our courts have recognized that “ ‘[i]t is one of the fundamental principles upon which equity jurispmdence is founded, that before a complainant can have a standing in court he must first show that not only has he a good and meritorious cause of action, but he must come into the court with clean hands. . . . The complainant ought not to be the transgressor himself, and then complain that by chance he has been injured on account of his own wrongful misconduct . . . the equity court will not lend him its jurisdiction to right a wrong of which he himself is the author.’ 1 Story, Equity Jurisprudence (14th Ed.) 98.” Boretz v. Segar, 124 Conn. 320, 323, 199 A.2d 548 (1938); see Murphy v. Dantowitz, 142 Conn. 320, 326, 114 A.2d 194 (1955). The principle that “[h]e who seeks equity must do equity” is one of extensive application. See 2 J. Pomeroy, supra, § 385 et seq. We recognize that “[t]he clean hands doctrine is applied not for the protection of the parties . . . . It is applied not by way of punishment but on considerations that make for the advancement of right and justice.” (Citations omitted.) Pappas v. Pappas, 164 Conn. 242, 246, 320 A.2d 809 (1973). We note that when the trial court turned to the “other reasonable cause” criterion, upon which it based its decision, and invoked its “equity and good conscience” rationale, it actually referred only to two factual bases upon which to bottom that conclusion; specifically that McEleney, although he had Jacobs’ Florida address since April, 1994, failed to go that route despite fairness and common sense “requiring” him to do so. The other circumstance was that the court clerk had Jacobs’ Florida address, and, although “not permitted to change addresses on notice of appearance,” should have made some notification in his computer that would have directed any hearing in damages claims to Jacobs’ Florida address. The conclusion of the trial court that imposed, without reason or law, upon McEleney the duty of sending the hearing in damages notice to Jacobs in Florida improperly relieved Jacobs of the burden of his own negligence which the court had already found Jacobs had committed. The influence that the trial court found, arising of McEleney’s so-called failure, could not properly give rise, in reason or law, to a finding that McEleney “contributed” to the judgment against Jacobs. Such improper attribution took Jacobs’ obligation to exercise due diligence out of the calculus in addition to which we have said above. Our Supreme Court has also said that “[i]n determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.” (Internal quotation marks omitted.) Berry v. Loiseau, 223 Conn. 786, 800, 614 A.2d 414 (1992); Krasowski v. Fantarella, supra, 51 Conn. App. 200. Moreover, such a conclusion also incorrectly applied the law. Such a conclusion cannot stand.

In like, but not identical, fashion, the trial court’s finding that although the clerk was not “permitted” to change addresses on appearances but “should have made” some notification in his computer of the Florida address cannot stand. It attributes, without any basis in evidence or rule, to the clerk an undertaking that the trial court itself concedes that the clerk is not “permitted” to do. If something is not “permitted,” that suggests that it is not to be done; this is resonant of the caveat. “Either we adhere to the rules or we do not adhere to them.” Osborne v. Osborne, supra, 2 Conn. App. 639. Here again there appears to be lack of recognition that due diligence is the petitioner’s burden and not to be shared with the opposing party.

In reviewing all the relevant circumstances in this case, we note that our Supreme Court has said in a case of equity that “[t]his is a claim in a court of equity and the conduct of the plaintiff is subject to scrutiny, since he who claims equity must do equity.” Basak v. Damutz, 105 Conn. 378, 385, 135 A. 453 (1926). “Equity and good conscience” do not comport with the relief given the plaintiff below. More significantly, we conclude that the trial court clearly abused its discretion in that it did not correctly apply the law and could not reasonably have reached the conclusion that it did.

The judgment is reversed and the case is remanded with direction to render judgment denying the petition for a new trial.

In this opinion the other judges concurred.

       At the time of the institution of this action the original defendants were Joseph Fazzano and Elizabeth McKeman. Since that time, Joseph Fazzano has died and Martha Fazzano, executrix of the estate of Joseph Fazzano, has been substituted as a plaintiff. Barry Jacobs remains as the plaintiff.

       General Statutes § 52-270 (a) provides: "The Superior Court may grant a new trial of any action that may come before it, for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a,just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a nonsuit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases. The judges of the Superior Court may in addition provide by rule for the granting of new trials upon prompt request in cases where the parties or their counsel have not adequately protected their rights during the original trial of an action.
      “(b) An affidavit signed by any party or his or her attorney shall be presumptive evidence of want of actual notice.”

       The underlying action was brought by a multicount complaint alleging, inter alia, breach of contract, negligence, intentional interference with contractual relations, misrepresentation, a violation of the covenant of good faith and a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq.

       We treat this as a pro se appearance for Barry Jacobs only.

       MQF did not appear at that time.

       Apparently, McEleney called a toll free Herndon, Virginia, telephone number he had obtained from the letterhead of MQF, which he had in his possession.

       A default also was entered against. MQF.

       McEleney sent the claim for the hearing in damages “first class mail, regular first-class mail.” Ills practice, in May 1994, was to send pleadings to the address that was on the appearance that was on file.

       In February, 1992, the Connecticut action brought in 1990 by McKeman and Fazzano against Jacobs and MQF remained pending.

       The trial court said at this point that: “Clearly, Jacobs had little interest in the outcome of the case because he had another agenda. He explicitly told his attorney that he ‘no longer wished to defend this matter.’ Although at trial Jacobs put a different spin on those words, the court does not believe him, and infers Jacobs was firing his attorney because he did not want to pay him any longer. His intention was to file for bankruptcy, which he did a few months later. However, he did not include the Fazzano-McKeman lawsuit, then pending, in his list of claims. Upon learning of the judgment entered against him, his first reaction was not to move to set it aside or bring a [General Statutes] § 52-270 proceeding, but applied in the bankruptcy court to have the judgment included in the debts discharged. Only when this application was denied, and over a year after he knew of the judgment, did he initiate this § 52-270 action.”

       The trial court, after finding Jacobs negligent and in “deliberate disregard” of his responsibility as a defendant in the underlying action, said that McEleney’s “failure” to send the notice to Jacobs’ Florida address “contributed” to the notice not being received by Jacobs. Such a formulation clearly suggests McEleney was under some duty which he failed to carry out. Insofar as it implies some “due diligence” had to be exercised by McEleney, it lacks merit.

       The trial court’s memorandum clearly indicated that it did not credit this.

       It is quite clear that the trial court felt sti-ongly about this. At the postjudgment hearing on the defendant’s motion in arrest of his judgment granting Jacobs’ petition for a new trial, the trial judge said: “I think my opinion makes very clear I have little sympathy for Mr. Jacobs. Dr. Jacobs, in effect, thumbed his nose at this court. Moreover, I’m absolutely clear what his agenda was: he didn’t give a dam about this judgement because he was going to go to the bankruptcy court and get it wiped out through the bankruptcy court. I understand what was happening here.”

       He offers no reasonable argument why the clerk’s office should put his Florida address in its computer system.

       In Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 324 U.S. 806, 814, 65 S. Ct. 993, 89 L. Ed. 1381 (1945), the United States Supreme Court stated: “The guiding doctrine in this case is the equitable maxim that ‘he who comes into equity must come with clean hands.’ This maxim is far more than a mere banality. It is a self-imposed ordinance that closes the doors of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief, however improper may have been the behavior of the defendant. That doctrine is rooted in the historical concept of court of equity as a vehicle for affirmatively enforcing the requirements of conscience and good faith. This presupposes a refusal on its part to be ‘the abettor of inequity.’ Bein v. Heath, 6 How. 228, 247 [47 U.S. 228, 12 L. Ed. 416 (1848)].”


author: SPEAR, J.

text:
    DONNA CALVI v. DIEGO R. AGRO ET AL.
    (AC 19645)
    Lavery, C. X, and Spear and Mihalakos, Js.
    Argued June 1
    officially released September 5, 2000

      Kathleen L. Nastri, with whom, on the brief, was David J. Vegliante, for the appellant (plaintiff).

      Leo J. McManus, for the appellee (defendant Metropolitan Property and Casualty Insurance Company).
   Opinion

SPEAR, J.

In this personal injury action, the plaintiff, Donna Calvi, appeals from the judgment of the trial court setting aside that portion of a jury verdict that awarded future medical expenses to her. She claims that the court improperly set aside the verdict on the ground that the evidence failed to support such an award. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. The plaintiff commenced an action against the defendant Diego Agro, an uninsured motorist, alleging that she sustained injuries on May 27, 1995, when Agro’s pickup truck struck her vehicle from behind. The court rendered a default judgment against Agro for his failure to appear at trial. The defendant Metropolitan Property and Casualty Insurance Company (Metropolitan), the plaintiffs insurer, stipulated to liability on the part of Agro because of his status as an uninsured tortfeasor. The case was tried to the jury on the issue of damages as against Metropolitan.

The jury heard testimony from the plaintiffs physician, Ronald S. Paret. Paret testified that the plaintiff sustained a 7 percent permanent partial disability to the cervical spine from her motor vehicle accident and that her symptoms will remain with her for the remainder of her life. Paret also stated that, in the absence of “catastrophic ligament failure,” the plaintiff was not restricted in her activities and that she could perform strenuous activities such as shoveling six inches of snow from a driveway. Paret then gave the following testimony as to the expected consequences of performing such a task: “I would expect that a typical person who had a cervical injury of that or a similar amount would be able to shovel a driveway . . . and that they then have a couple, three days, a week, two weeks of more muscle spasm and occasionally they come back to me and they get more physical therapy and they take medication . . . .” Paret finally testified that it is difficult to determine precisely what activities would or would not aggravate a cervical condition in a patient.

The jury also heard testimony from the plaintiff that three years after her accident she still experiences pain that limits her activities. After the presentation of evidence, the jury returned a verdict in favor of the plaintiff in the amount of $3000 in noneconomic damages and of $200,365.73 in economic damages, $197,352 of which was for future medical expenses. Metropolitan filed a motion to set aside the verdict as to the award of future medical expenses only, and the court determined that “the award to the plaintiff for future economic damages [was] without foundation in the evidence . . . .” The court then set aside the verdict and ordered a new trial. This appeal followed.

We first address our standard of review regarding the plaintiffs claims. “We review a trial court’s decision to set aside a verdict by determining whether there has been an abuse of discretion. State v. Ross, 230 Conn. 183, 227-28, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995); see also Hunt v. Prior, 236 Conn. 421, 428 n.21, 673 A.2d 514 (1996); A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 206, 579 A.2d 69 (1990). Discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. ... It goes without saying that the term abuse of discretion . . . means that the ruling appears to have been made on untenable grounds. ... In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action. . . . Whalen v. Ives, 37 Conn. App. 7, 21, 654 A.2d 798, cert. denied, 233 Conn. 905, 657 A.2d 645 (1995).” (Internal quotation marks omitted.) Turk v. Silberstein, 48 Conn. App. 223, 225-26, 709 A.2d 578 (1998).

The plaintiff claims that the court abused its discretion when it set aside the jury verdict because the evidence supported the award of future medical expenses. We disagree.

“[A]s to future medical expenses, the jury’s determination must be based upon an estimate of reasonable probabilities, not possibilities. . . . The obvious purpose of this requirement is to prevent the jury from awarding damages for future medical expenses based merely on speculation or conjecture.” (Citation omitted; internal quotation marks omitted.) Marchetti v. Ramirez, 240 Conn. 49, 54, 688 A.2d 1325 (1997). The evidence at trial must be sufficient to support a reasonable likelihood “that future medical expenses will be necessary.” Id., 55; see also Paige v. St. Andrew’s Roman Catholic Church Corp., 250 Conn. 14, 34, 734 A.2d 85 (1999).

In this case, there is no medical evidence supporting the conclusion that the plaintiff would likely require future medical treatment. The evidence presented regarding the plaintiffs condition at trial was in the form of testimony from both the plaintiff and Paret. The plaintiff testified that she still experiences pain from her condition. Paret testified that while the plaintiff would experience symptoms from her condition for the rest of her life, he could not say what activities would trigger those symptoms. He merely stated that he would expect that if a typical person with the plaintiffs condition performs a strenuous activity that triggers muscle spasms, that person may occasionally visit his office for therapy and medication.

Paref s testimony is equivalent to a statement that the plaintiff might require future medical treatment if she engages in strenuous activity that triggers her symptoms. In Marchetti, our Supreme Court held that it was “not persuaded that testimony by a medical expert that the plaintiff might need future treatment, coupled with the plaintiffs assertion that [she] still suffers pain, necessarily removes the issue of future medical expenses from the realm of conjecture. . . . [W]e reject the assertion . . . that such evidence is sufficient for consideration of the element of future medical expense.” (Internal quotation marks omitted.) Marchetti v. Ramirez, supra, 240 Conn 55. Accordingly, we conclude that the medical evidence adduced at trial was insufficient to support the damages award as to future medical expenses, and, therefore, the court properly granted Metropolitan’s motion to set aside the verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

       Metropolitan provided uninsured motorist benefits in the amount of $100,000.


author: O’CONNELL, C. J.

text:
    STATE OF CONNECTICUT v. ORGEBY HOLLBY
    (AC 18678)
    O'Connell, C. J., and Mihalakos and Zarella, Js.

      Argued March 1
    officially released September 5, 2000

      Del Atwell, special public defender, for the appellant (defendant).

      Robert M. Spector, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Mary A. Sanangelo, senior assistant state’s attorney, for the appellee (state).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

O’CONNELL, C. J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), sexual assault in the third degree in violation of General Statutes § 53a-72 (a) (1) (A) and risk of injury to a child in violation of General Statutes (Rev. to 1991) § 53a-21. The defendant claims that (1) the information was jurisdictionally defective, (2) the conviction of sexual assault in the first degree was not supported by the evidence, (3) the trial court improperly instructed the jury and (4) he was denied effective assistance of counsel. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. On July 15, 1997, the defendant was arrested in connection with the sexual assault of the four year old daughter of the girlfriend with whom he lived. He subsequently was charged in an information with the three crimes of which he was convicted. The sexual assaults that provided the basis for the conviction took place between April and September, 1991, when the defendant engaged in repeated acts of digital fondling and penile contact with the vaginal area of the victim. Additional facts will be discussed where relevant to the issues on appeal.

I

The defendant claims first that the information was jurisdictionally defective. He argues that the court lacked jurisdiction because the information failed to state his age and therefore failed to charge him properly with sexual assault in the first degree. We do not agree.

The following additional facts are relevant to our resolution of this claim. The defendant filed a motion for a bill of particulars seeking the date, time and location of each offense that was alleged to have occurred, as well as the statutoiy offenses with which he was charged. Shortly thereafter, the state filed a long form information that, as amended, charged that “at the city of New Haven, on an unknown date or dates between 1990 through 1991, at 198 Winthrop Avenue, the said [defendant] engaged in sexual intercourse (to wit: penile penetration) with another person (a female child . . . D.O.B. 2/7/87) and such other person was under thirteen years of age and the said [defendant] was more than two years older than such person, said conduct being in violation of [§] 53a-70 (a) (2) . . . .”

Although the defendant raises this issue for the first time on appeal, it is reviewable because it concerns a jurisdictional challenge based on a defective information. Practice Book § 41-5; State v. McMurray, 217 Conn. 243, 249, 585 A.2d 677 (1991). “When reviewing a claim, not raised prior to the verdict, that an information fails to charge all the essential elements of an offense, we must construe the information liberally in favor of the state. ... [A] conviction based upon a challenged information is valid unless the information is so obviously defective that by no reasonable construction can it be said to charge the offense for which conviction was had. . . .

“When the state’s pleadings have informed the defendant of the charge against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise, and were definite enough to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense, they have performed their constitutional duty. . . . [I]t is sufficient for the state to set out in the information the statutory name of the crime with which the defendant is charged, leaving to the defendant the burden of requesting a bill of particulars more precisely defining the manner in which the defendant committed the offense. . . . [T]here [is] no constitutional infirmity in the state’s practice here, nor in the requirement that the defendant request a more particularized allegation if he desires one.” (Citations omitted; internal quotation marks omitted.) State v. Reed, 55 Conn. App. 170, 175-76, 740 A.2d 383, cert. denied, 251 Conn. 921, 742 A.2d 361 (1999).

Although the information did not include the defendant’s age, it did provide the defendant with the exact section and subsection of the statute under which he was charged, and included pertinent information regarding where, how and approximately when the alleged events occurred. Moreover, it provides the victim’s date of birth and expressly alleges that the defendant was more than two years her senior at the time of the assault. On the basis of our review of the record, we conclude that the information adequately charged the defendant with the offense for which he was convicted and was sufficiently precise as to enable him to prepare his defense. Because the information was adequate, we conclude that the trial court had jurisdiction over this matter.

II

The defendant claims next that the jury’s verdict of guilty of sexual assault in the first degree was not supported by the evidence. He argues that the jury was not presented with evidence sufficient for it to find that the defendant was more than two years older than the victim. We do not agree.

The defendant did not preserve this issue at trial and, therefore, he can obtain review of this claim only under the doctrine enunciated in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or if his claim qualifies under the plain error doctrine. State v. Quinones, 56 Conn. App. 529, 531, 745 A.2d 191 (2000). A claim that evidence was insufficient to convict is of constitutional dimension and, therefore, is subject to review under Golding. State v. Jamison, 56 Conn. App. 223, 226-27, 742 A.2d 1272 (1999).

“In reviewing a sufficiency of the evidence claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Miller, 59 Conn. App. 406, 412, 757 A.2d 69 (2000).

Under the statute proscribing sexual assault in the first degree, § 53a-70 (a) (2), the state is required to prove that the defendant engaged in sexual intercourse with another person, that the other person was under thirteen years of age at the time of the act of intercourse and that the defendant was more than two years older than such person at the time of the act of intercourse. The defendant claims that the “record is devoid of any indication of the defendant’s age” and, therefore, the state failed to sustain its burden of establishing this element of the crime of sexual assault in the first degree. The defendant claims also that the state failed to meet its burden of proving beyond a reasonable doubt that the defendant engaged in sexual intercourse with the victim or that the defendant was the victim’s assailant.

On the basis of the evidence and the reasonable inferences drawn therefrom, we conclude that there was sufficient evidence for the jury to conclude that the defendant committed sexual assault in the first degree against the victim. The jury was presented with direct evidence that the victim was four years old at the time of the assaults and with circumstantial evidence that the defendant was at least seven years old when he committed the assaults. The jury was aware that the defendant was the live-in boyfriend of the victim’s mother, that he shared a bedroom with the victim’s mother, that he baby-sat the victim while her mother was away, that the victim’s brother, who was five years old at the time of the assaults, sought his assistance with homework, and that the defendant inserted his penis into the victim’s vagina. The jury also could view the defendant at trial. Furthermore, the jury heard evidence that the defendant, at least once, laid on top of the victim while her pants and underwear were pulled down to her feet with her legs spread wide apart while his pants were also pulled down, and that he put his penis inside her vagina at that time while moving his body ixp and down.

The jury is entitled to draw reasonable and logical inferences from the evidence. “[T]he jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” State v. Grant, 219 Conn. 596, 604, 594 A.2d 459 (1991). “[I]n considering the evidence introduced in a case, [j Juries are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Internal quotation marks omitted.) State v. Ardono, 45 Conn. App. 187, 195, 695 A.2d 6, cert. denied, 242 Conn. 904, 697 A.2d 688 (1997).

In light of the evidence presented, it was reasonable for the jury to conclude that a person who was the live-in boyfriend of the victim’s mother would be older than seven years of age. From that fact and the others established at trial and the reasonable inferences to be drawn therefrom, it was reasonable for the jury to have found that the defendant was at least seven years of age and that he vaginaily penetrated the victim who was four years old. We conclude, therefore, that the defendant’s conviction of sexual assault in the first degree properly was based on sufficient evidence.

Ill

The defendant claims next that the court improperly instructed the jury. Specifically, the defendant claims that the instruction was improper because (1) it constituted a constructive amendment to the information, thereby denying his right to notice of the charges against him under the sixth amendment to the United States constitution, (2) the court failed to mention the concept of presumption of innocence and (3) the court improperly instructed the jury regarding reasonable doubt. We do not agree.

The defendant did not raise these claims in the trial court and, therefore, may seek review only under the Golding or plain error doctrines. Because the record is adequate for review and the alleged violation is of constitutional magnitude, involving the defendant’s right to due process, we must, therefore, determine whether the defendant has met his burden under the third prong of Golding to show that the alleged constitutional violation clearly exists and clearly deprived him of a fair trial. See State v. Golding, supra, 213 Conn. 239-40.

“In reviewing a constitutionally based challenge to the court’s instructions to the jury, we must determine whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . [W]e must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury. ... To pass constitutional muster, jury instructions must be correct in law, adapted to the issues in the case and sufficient to guide the jury in arriving at a verdict. . . . The test that we apply to any part of a charge is whether the charge as a whole presents the case to a jury in such a manner that no injustice is perpetrated. . . . [R]eversal [is required] only if, in the context of the whole instruction, there is a reasonable possibility that the jury was misled in reaching its verdict.” (Citations omitted; internal quotation marks omitted.) State v. Dwyer, 59 Conn. App. 207, 217, 757 A.2d 597 (2000).

A

According to the defendant, the court failed to instruct the jury properly because the instruction given informed the jury that it must make a finding that the defendant was more than two years older than the victim at the time of the act of sexual intercourse in order to find the defendant guilty of sexual assault in the first degree. Although this charge properly characterizes a necessary element of the crime of sexual assault in the first degree, the defendant claims that, because this element was not included in the information or amended informations, the trial court enlarged the charged offenses. This, he claims, constituted an improper constructive amendment to the information such that the judgment of conviction as to this charge should be reversed.

As we discussed in part I of this opinion, however, the final information stated that the defendant “engaged in sexual intercourse (to wit: penile penetration) with another person (a female child . . . D.O.B. 2/7/87) and such other person was under thirteen years of age and the said [defendant] was more than two years older than such person . . . .” (Emphasis added.) The court’s instruction was consistent with both the language of the information and the statute defining sexual assault in the first degree. Accordingly, this claim is without merit.

B

The defendant claims that the court failed to instruct the jury on the presumption of the defendant’s innocence. This claim is without merit.

The court informed the jury that “the defendant . . . is presumed to be innocent unless he is proven guilty beyond a reasonable doubt. . . . [A]t the moment the defendant was presented for trial here before you . . . he then was innocent and ... he continues [to be] innocent until such time as the evidence . . . proves to you beyond a reasonable doubt that he is guilty.” Because the court properly informed the jury on the presumption of the defendant’s innocence, this claim must fail.

C

The defendant claims also that the court improperly instructed the jury that “a reasonable doubt is a real doubt, an honest doubt, a doubt which has its foundation in the evidence offered in the case or in the absence of evidence.” This claim is meritless.

The challenged instruction is similar to jury instructions that previously have been approved by our Supreme Court. See State v. Small, 242 Conn. 93, 114-15, 700 A.2d 617 (1997). This court cannot review or reverse Supreme Court precedent. State v. Bailey, 56 Conn. App. 760, 762, 746 A.2d 194 (2000). Although the defendant is aware that we cannot review this claim, he makes it nevertheless to preserve the record in the event of Supreme Court review. Accordingly, the defendant cannot prevail on this claim in this court.

Our review of the charge as a whole, however, reveals that it is not reasonably possible that the jury was misled as to any of the issues presented by the defendant here and that the court properly instructed the jury. The defendant, therefore, has failed to demonstrate that a violation of his constitutional rights clearly occurred and clearly deprived him of a fair trial. All of these claims, therefore, fail the third prong of Golding.

IV

The defendant claims finally that he was denied effective assistance of counsel. He argues that he was denied his right under the sixth amendment to the United States constitution to proceed pro se. We disagree.

“We have long held that the proper foram in which to address claims of ineffective representation of counsel is in the habeas foram or in a petition for a new trial, rather than on direct appeal. . . . [0]ur Supreme Court has stated [that] an ineffective assistance claim should be resolved, not in piecemeal fashion, but as a totality after an evidentiary hearing in the trial court where the attorney whose conduct is in question may have an opportunity to testify.” (Citations omitted; internal quotation marks omitted.) State v. Laracuente, 57 Conn. App. 91, 97, 749 A.2d 34, cert. denied, 253 Conn. 923, 754 A.2d 798 (2000). We conclude, in accordance with this precedent, that this issue must be resolved in a habeas corpus proceeding.

The judgment is affirmed.

In this opinion the other judges concurred.

       In State v. Golding, supra, 213 Conn. 239-40, our Supreme Court held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude, alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.)

       See footnote 2.

       See Practice Book § 60-5.


author: SCHALLER, J.

text:
    JAMES MURRAY ET AL. v. DAVID L. SCHROEDER ET AL.
    (AC 18885)
    Lavery, Schaller and Spear, Js.

      Argued February 22
    officially released September 5, 2000

      David P. Condon, for the appellants (defendants).

      Lloyd L. Langhammer, for the appellees (plaintiffs).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

SCHALLER, J.

This appeal requires us to determine whether the trial court properly found that (1) an easement by express grant by deed exists over the property of the defendants, David L. Schroeder and Sandra J. Schroeder, in favor of the plaintiffs James A. Murray and Sylvia C. Murray, and (2) an easement of necessity exists over the defendants’ property in favor of the plaintiff Jack Mazerolle. On appeal, the defendants claim that the court improperly (1) admitted into evidence certain aerial photographs and (2) found that Mazerolle had an easement of necessity over their property because (a) the court failed to find that unity of title existed between the properties of the defendants and Mazerolle, and (b) Mazerolle could not prove title to his property. We affirm the judgment of the trial court.

The following facts and procedural history are necessary to our disposition of this appeal. The subject of the dispute is a driveway with its origin at Cossaduck Hill Road in North Stonington. Starting there, the driveway crosses the properties of Glen Reil, the defendants, the Murrays, Eleanor Johnson and Mazerolle. The Mur-rays and Mazerolle used the driveway to access their properties before the defendants acquired a lot over which the driveway passes in 1994. Thereafter, in 1996, pursuant to their belief that the plaintiffs had no right to use the driveway as it passed over their property, the defendants obstructed it with a car, debris and a wire cable. The defendants also dug a hole in the driveway that they covered with a thin piece of plywood.

By way of an amended complaint, the plaintiffs brought this action against the defendants in six counts. As to the Murrays, the complaint alleged that they had a right to the use of the driveway as it passes over the defendants’ property on the basis of an express grant by deed, a prescriptive easement and an easement of necessity. As to Mazerolle, the complaint alleged that he had a right to use the driveway as it passes over the defendants’ property also on the basis of an express grant by deed, a prescriptive easement and an easement of necessity. The complaint sought, inter alia, to quiet title as to the rights of the plaintiffs to use the driveway and to enjoin the defendants from interfering with the plaintiffs’ use of the driveway. Following a trial to the court, the court, in a memorandum of decision, rendered judgment (1) in favor of the Murrays, concluding that they had a right-of-way over the defendants’ property that was created by deed, (2) in favor of Mazerolle, concluding that he had a right-of-way of necessity over the defendants’ property and (3) permanently enjoining the defendants from interfering with the plaintiffs’ use of the right-of-way. This appeal followed. Additional facts will be set forth as necessary.

I

The defendants claim first, as to the Murrays, that the court improperly admitted into evidence without a proper foundation (1) a 1960 aerial photograph utilized by the tax assessor’s office of the town of North Stoning-ton in the course of business and (2) four aerial photographs taken by the department of environmental protection in 1965, 1970, 1975 and 1980, respectively. The defendants claim that the improper evidentiary rulings were harmful. Because we conclude that there was ample other evidence relating to the issue for which the photographs were admitted, we need not decide whether the court’s admission of the challenged evidence was improper.

In 1965, Scott Smith owned lots 8, 8.01 and 8.02 as one parcel. In 1968, Smith conveyed lots 8 and 8.01 and retained lot 8.02, which is now owned by the Murrays. The following deed language reserved in the owner of lot 8.02 the right to use the driveway as it passes over lot 8.01, which is now owned by the defendants: “The grantor reserves for himself, his heirs and assigns a right of way for all purposes over the existing right of way to the Cossaduck Hill Road for the benefit of his remaining land.” The defendants do not dispute that this language creates an easement. The crux of the defendants’ claim is that if the photographs had not been admitted into evidence, there would have been no evidence before the court regarding the condition of the defendants’ property within eight years before or after the reservation of the right-of-way in the 1968 deed. Therefore, they claim that the court would not have had an adequate basis to conclude that the position of the driveway is the same today as it was at the time of the reservation of the right-of-way in the 1968 deed.

“It is well recognized that any error in the admission of evidence does not require reversal of the resulting judgment if the improperly admitted evidence is merely cumulative of other validly admitted testimony. Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., 190 Conn. 371, 391, 461 A.2d 422 (1983). Even if we were to presume that the [trial court improperly admitted the photographs] . . . the [defendants] would need to prove that that [evidence] more probably than not affected the result.” (Internal quotation marks omitted.) Fink v. Golenbock, 238 Conn. 183, 211, 680 A.2d 1243 (1996); see Swenson v. Sawoska, 215 Conn. 148, 153, 575 A.2d 206 (1990).

Eleanor Johnson testified that she has lived on her lot since 1947 and that the driveway at issue in this case traverses her land between the defendants’ lot and Mazerolle’s lot. Johnson testified on the basis of her personal knowledge that the location of the driveway is the same now as it was in the 1950s. The record is devoid of any evidence that indicates that the location of the driveway changed within the period from the 1950s until the time of the court’s judgment, and it was logical for the court, as the trier of fact, to infer that the location of the driveway at the time of trial was the same as it was in 1968, when the easement had been created. Accordingly, we conclude that the evidence of the aerial photographs was cumulative of other competent evidence and, as such, its admission was harmless.

II

The defendants claim next that the court improperly found that Mazerolle had an easement of necessity over their property because (1) the court failed to find that unity of title existed between the defendants’ and Mazerolle’s properties, and (2) Mazerolle could not prove title to his property. We disagree.

Mazerolle’s lot is landlocked. The court found that Mazerolle was entitled to an easement of necessity with respect to the driveway as it passes over the defendants’ property. The court based its finding on its conclusion that the driveway is Mazerolle’s only source of access to his property from Cossaduck Hill Road, there being no credible evidence to the contrary.

A

The defendants claim first that the court improperly found that Mazerolle has an easement of necessity over their property because the court failed to find that unity of title existed between the two parcels. This claim is without merit. In Bolan v. Avalon Farms Property Owners Assn., Inc., 250 Conn. 135, 144-45, 735 A.2d 798 (1999) (en banc), our Supreme Court abrogated the unity of title doctrine. Because the defendants’ claim relies on a faulty premise, it must fail.

B

The defendants claim finally that the court improperly found that an easement of necessity exists over their property for the benefit of Mazerolle because Mazerolle could not prove title to his property as required by the law. We disagree.

The defendants argue that Mazerolle’s predecessors in title owned 185 acres and transferred only 100 acres to Mazerolle, that evidence introduced by the plaintiffs confirms the discrepancy and that such discrepancy renders Mazerolle’s proof of title insufficient. The defendants also argue that Branch v. Occhionero, 239 Conn. 199, 681 A.2d 306 (1996), requires Mazerolle to prove title to the dominant estate to obtain an easement of necessity. The Supreme Court in Branch held that “to create a right-of-way as an appurtenance to the dominant estate, both the dominant and servient estates must be identified.” Id., 204. Branch, however, is distinguishable from the present case. The issue in Branch was whether a right-of-way had been created by a conveyance in a deed. The grant in the deed did not identify which one of two parcels was intended to be the beneficiary of the right-of-way. Id., 206. Because the identification of the dominant estate was not clear in the conveyance and because the defendants had failed to identify the property that the right-of-way was intended to benefit, the court concluded that they had failed to prove the right-of-way over the plaintiffs property. Id. Here, the court found that Mazerolle had an easement of necessity, and the evidence shows that he identified the property benefited by that easement. The defendants, therefore, cannot avail themselves of this argument.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants also argue, for the first time in their reply brief, that the plaintiffs failed to prove that the “dominant estate was rendered inaccessible by the sale of the servient estate.” “It is a well established principle that arguments cannot be raised for the first time in a reply brief.” (Internal quotation marks omitted.) Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 593 n.26, 657 A.2d 212 (1995). We therefore decline to consider this claim.

       The trial court’s memorandum of decision is dated September 1, 1998, and Bolan was decided in August, 1999. We, however, apply Bolan retroactively to this case. See Perkins v. Fasig, 57 Conn. App. 71, 75-76, 747 A.2d 54, cert. denied, 253 Conn. 925, 754 A.2d 797 (2000).

       We note that there was ample evidence from which the court could have found that Mazerolle had identified the dominant estate. Specifically, Mazerolle testified that his predecessors in title sold him all of their property in North Stonington and that the description in the deed of the predecessors is the same as the description contained in Mazerolle’s deed. Furthermore, the defendants’ claim is disingenuous in that it is based on the assessor’s map that had been introduced into evidence by the plaintiffs that the defendants argue was improperly admitted by the court.