author: DiPENTIMA, C. J.

text:
    HOSPITAL OF CENTRAL CONNECTICUT v. NEUROSURGICAL ASSOCIATES, P.C.
    (AC 33075)
    DiPentima, C. J., and Robinson and Pellegrino, Js.

      Argued September 10
    officially released December 25, 2012

      Robert D. Tobin, with whom were Thomas J. Riley and, on the brief, Bethany F. Haslam, for the appellant (plaintiff).

      Edward T. Lynch, Jr., with whom, on the brief, was Steven Lapp, for the appellee (defendant).
   Opinion

DiPENTIMA, C. J.

The plaintiff, the Hospital of Central Connecticut, appeals from the summary judgment rendered in favor of the defendant, Neurosurgical Associates, P.C. On appeal, the plaintiff claims that the trial court improperly granted the defendant’s motion for summary judgment as to its unjust enrichment and statutory theft counts. We agree with the plaintiff in part, and, therefore, reverse the summary judgment rendered in favor of the defendant as to the count of unjust enrichment.

The plaintiff commenced this action with a two count complaint alleging unjust enrichment and theft pursuant to General Statutes § 52-564. The complaint contained the following factual allegations. On June 6,2005, the parties entered into an agreement where the defendant agreed to provide neurological on-call coverage for the plaintiff. In exchange for this coverage, the plaintiff agreed to pay the defendant a monthly fee of $8333.33. On or about August 31, 2006, the agreement was renewed for one additional year and was subject to automatic renewals thereafter. The agreement also contained a termination provision with a notice requirement. The plaintiff sent the defendant a notice on or about August 3, 2007, terminating the agreement as of October 8, 2007, and welcoming the “[defendant's [physician[s’] continued active participation on the hospital’s medical staff.” This active participation required the defendant’s physicians to provide on-call services without charge pursuant to the policies of the plaintiff. Despite the termination letter, the plaintiff mistakenly continued to pay a monthly fee to the defendant for a period of eight months, totaling $66,666.64. In a letter dated September 2, 2008, David R. Newton, the plaintiffs chief financial officer, demanded the return of $66,666.64. The defendant refused to repay the money. The plaintiff also alleged, in its second count, that the defendant, intentionally and without authorization, had taken and withheld the funds from the plaintiff.

Thereafter, the defendant filed a motion for summary judgment and provided the court with a memorandum of law. Approximately one month later, the plaintiff filed a motion for summary judgment and attached a memorandum of law in support of its motion and in opposition to the defendant’s motion. Following a hearing, the court issued a memorandum of decision denying the plaintiffs motion for summary judgment and granting the defendant’s motion for summary judgment as to both counts of the complaint. Specifically, it concluded that “[t]he undisputed facts do not support a cause of action for either unjust enrichment or civil theft.” This appeal followed.

“Summary judgment is a method of resolving litigation when 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. . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried. . . . However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard ... of demonstrating his entitlement to summary judgment. . . . Our review of the trial court’s decision to grant the defendant’s motion for summary judgment is plenary.” (Citations omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534—35, 51 A.3d 367 (2012); Wykeham Rise, LLC v. Federer, 305 Conn. 448, 456, 52 A.3d 702 (2012); see also Practice Book § 17-49. “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) Mills v. The Solution, LLC, 138 Conn. App. 40, 46, 50 A.3d 381, cert. denied, 307 Conn. 928, 55 A.3d 570 (2012); Cornelius v. Rosario, 138 Conn. App. 1, 6, 51 A.3d 1144 (2012).

“The party opposing a motion for summary judgment must present evidence that demonstrates the existence of some disputed factual issue .... The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist. ... To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts . . . which contradict those stated in the movant’s affidavits and documents. . . . The opposing party to a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.” (Internal quotation marks omitted.) Desrosiers v. Diageo North America, Inc., 137 Conn. App. 446, 451-52, 49 A.3d 233, cert. granted on other grounds, 307 Conn. 916, 54 A.3d 180 (2012); Deutsche Bank National Trust Co. v. Shivers, 136 Conn. App. 291, 295-96, 44 A.3d 879 (2012). “A material fact is a fact which will make a difference in the result of the case. . . . [IJssue-finding, rather than issue-determination, is the key to the procedure. . . . [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment. . . . [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist.” (Internal quotation marks omitted.) Vestuti v. Miller, 124 Conn. App. 138, 142, 3 A.3d 1046 (2010); see also Maltas v. Maltas, 298 Conn. 354, 365, 2 A.3d 902 (2010) (court’s function to decide whether issues of material fact exist). Guided by these principles, we turn to the specifics of the plaintiffs appeal.

I

The plaintiff first claims that the court improperly rendered summary judgment in favor of the defendant with respect to its unjust enrichment count. Specifically, the plaintiff argues that the court failed to consider the evidence in the light most favorable to the plaintiff, as the nonmoving party. It further contends that had the court done so, it would not have rendered summary judgment with respect to the unjust enrichment count. We agree with the plaintiff that the court improperly rendered summary judgment with respect to this count.

We begin by setting forth the law regarding a claim of unjust enrichment. “Unjust enrichment applies wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract. . . . A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another. . . . With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard. . . . Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy. . . . Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs’ detriment.” (Internal quotation marks omitted.) Vertex, Inc. v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006); see also American Express Centurion Bank v. Head, 115 Conn. App. 10, 16, 971 A.2d 90 (2009); M. Taylor & D. Krisch, Encyclopedia of Connecticut Causes of Action (2009) p. 65.

The following additional facts are contained in the materials that were before the court in deciding the summary judgment motions. Steven Hanks, the senior vice president and chief medical officer for the plaintiff, submitted an affidavit stating that he had been involved in the negotiations between the plaintiff and the defendant. As a general matter, the plaintiff required all physicians on its staff to provide on-call coverage. The physicians that comprised the defendant, Stephan C. Lange, Howard Lantner, Stephen F. Calderon and Bruce S. Chozick, were members of the plaintiffs active medical staff at all relevant times. Each had signed staffing privilege agreements detailing the rights and responsibilities of this status with the plaintiff. These responsibilities were set forth in the medical staff bylaws (bylaws) and the rules and regulations of the medical staff of the plaintiff (regulations) and were incorporated in the staffing privilege agreements signed by the individual physicians.

Article III, § 3 d, of the bylaws provides in relevant part: “Every application for staff appointment shall be signed by the applicant and shall contain the applicant’s specific knowledge of every medical staff member’s obligation to . . . participate in staffing the emergency service area and other special care units.” Section IIH of the regulations provides: “Each member of the active staff is expected to cover the emergency room for both staff service and unassigned private patients on a rotational basis as assigned. It is the staff member’s responsibility to arrange appropriate coverage if unable to fulfill this obligation.” At all relevant times, the defendant’s physicians were members of the medical staff and were classified as associate attending staff. The appointment letter specifically stated that the plaintiffs physicians were subject to the bylaws, regulations and policies of the hospital and medical staff.

Hanks, on behalf of the plaintiff, took the position that following the termination of the contract between the plaintiff and the defendant, the defendant’s physicians were obligated by the terms of the staff agreement, bylaws and regulations to provide on-call coverage. In exchange, the defendant’s physicians received the ability to use the plaintiffs facilities, such as operating rooms, and the plaintiffs employees, such as nurses. The defendant’s physicians continued to admit patients and to use the plaintiffs facilities and staff after the termination of the contract, from October, 2007 through July, 2008. Finally, according to Hanks’ affidavit and other evidence, during the relevant time period, other physicians provided on-call neurological services to the plaintiff without cost.

In its memorandum of decision, the court concluded that summary judgment was appropriate for two reasons. First, the defendant provided on-call coverage to the hospital after the contract had been terminated and, thus, the plaintiff received the benefit of the defendant’s services. Second, the defendant never intended to provide the services for free. For these reasons, the court concluded that the undisputed facts did not support a cause of action for unjust enrichment and, therefore, it granted the defendant’s motion for summary judgment. We disagree with the trial court and conclude that it should have denied the defendant’s motion.

The plaintiff presented documentary evidence, including the affidavit of Hanks and the bylaws and regulations of the plaintiff, to oppose the motion for summary judgment. It was undisputed that the plaintiff terminated the contract paying the defendant for on-call services. The plaintiffs evidence demonstrated that there was a genuine issue of material fact with respect to the obligation of the defendant’s physicians to provide on-call services irrespective of the terminated contract. Specifically, article III, § 3 d, of the bylaws and § II H of the regulations required active staff members to provide such services in exchange for the ability to use the plaintiffs facilities and staff. “The privilege to admit and treat patients at a hospital can be critical to a doctor’s ability to practice his [or her] profession and to treat patients. Both doctors and patients can suffer if otherwise qualified doctors are wrongly denied staff privileges. . . . Consequently, hospitals must treat physicians fairly in making decisions about their privileges because patients need physicians and they, in turn, need hospital privileges to serve their patients.” (Internal quotation marks omitted.) Harris v. Bradley Memorial Hospital & Health Center, Inc., 296 Conn. 316, 333-34, 994 A.2d 153 (2010). While it is true that the defendant and its physicians were not supposed to be paid a monthly fee for providing on-call services following the termination of the contract, a factual issue exists as to whether they were required “to work for free.” A fact finder may determine that, in exchange for providing on-call services, the defendant’s physicians received the clinical privileges as provided in article VI of the bylaws. Finally, we note that the plaintiff provided evidence that each physician of the defendant signed a staffing agreement in which he agreed to the terms of the bylaws and regulations, including the requirement of on-call coverage.

On the basis of the record before us, we conclude that the court improperly rendered summary judgment with respect to the plaintiffs unjust enrichment count. A genuine issue of material fact exists with respect to whether the defendant was unjustly enriched as a result of the payments to the defendant totaling $66,666.64 following the termination of the parties’ contract. A fact finder could conclude that these payments were made in error and in addition to the obligation of the defendant’s physicians to provide the on-call service, for which they already received the benefits of using the plaintiffs facilities and staff. Such a finding would support the elements of unjust enrichment, and, therefore, the defendant is not entitled to judgment as a matter of law. See, e.g., Plato Associates, LLC v. Environmental Compliance Services, Inc., 298 Conn. 852, 862, 9 A.3d 698 (2010). We conclude, therefore, that the court improperly rendered summary judgment with respect to count one of the plaintiffs operative complaint.

II

The plaintiff next claims that the court improperly rendered summary judgment in favor of the defendant with respect to its statutory theft count. The undisputed facts demonstrate that the claim of statutory theft fails as a matter of law because there was no evidence before the court that the defendant intended to deprive the plaintiff of the money, a necessary element for the statutory theft cause of action. Accordingly, we conclude that the court properly granted the defendant’s motion for summary judgment as to this count.

We begin with the legal principles of the cause of action for statutory theft. “Section 52-564 provides: Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages. Statutory theft under § 52-564 is synonymous with larceny under General Statutes § 53a-119. ... A person commits larceny within the meaning of General Statutes § 53a-119 when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. An owner is defined, for purposes of § 53a-119, as any person who has a right to possession superior to that of a taker, obtainer or withholder.” (Citation omitted; internal quotation marks omitted.) Blackwell v. Mahmood, 120 Conn. App. 690, 700, 992 A.2d 1219 (2010); see also Whitaker v. Taylor, 99 Conn. App. 719, 732, 916 A.2d 834 (2007).

Our Supreme Court has distinguished the tort of conversion from statutory theft as follows: “The tort of [conversion occurs when one, without authorization, assumes and exercises ownership over property belonging to another, to the exclusion of the owner’s rights. . . . Thus, [conversion is some unauthorized act which deprives another of his property permanently or for an indefinite time; some unauthorized assumption and exercise of the powers of the owner to his harm. The essence of the wrong is that the property rights of the plaintiff have been dealt with in a manner adverse to him, inconsistent with his right of dominion and to his harm. . . . The term owner is one of general application and includes one having an interest other than the full legal and beneficial title. . . . The word owner is one of flexible meaning, and it varies from an absolute proprietary interest to a mere possessory right. ... It is not a technical term and, thus, is not confined to a person who has the absolute right in a chattel, but also applies to a person who has possession and control thereof. . . . Conversion can be distinguished from statutory theft as established by § 53a-119 in two ways. First, statutory theft requires an intent to deprive another of his property; second, conversion requires the owner to be harmed by a defendant’s conduct. Therefore, statutory theft requires a plaintiff to prove the additional element of intent over and above what he or she must demonstrate to prove conversion.” (Citations omitted; internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 770-71, 905 A.2d 623 (2006); see also News America Marketing In-Store, Inc. v. Marquis, 86 Conn. App. 527, 544, 862 A.2d 837 (2004), aff'd, 276 Conn. 310, 885 A.2d 758 (2005).

The dispositive issue for this claim is whether a genuine issue of material fact exists with respect to the element that distinguishes statutory theft from conversion, that is, whether the defendant intended to deprive another of property. The trial court concluded that there was no evidence of such intent. We agree.

The plaintiffs complaint simply alleged, in count two, that the defendant “intentionally and without authorization took and withheld the funds from the [p]laintiff.” Hanks stated in his affidavit that the defendant’s physicians failed to inform the plaintiff that payment had continued after October, 2007. He further stated that the defendant refused to return the $66,666.64 after receiving the plaintiffs demand letter. As previously noted, the defendant’s physicians sent a letter to the plaintiffs chief financial officer stating that they had provided coverage during the time period of October, 2007 through May, 2008, having been placed on the call schedule and “appropriately reimbursed by the [plaintiff] for this service.”

In his deposition, Lantner stated that all of the defendant’s physicians were of the opinion that the plaintiff wanted to continue the arrangement, despite the termination of the contract in October, 2007. Every month that they received the payment, they provided the on-call services. Finally, after the payments had ceased, the defendant physicians downgraded their privileges at the plaintiff to “courtesy staff.”

We now turn to the case law with respect to the intent element of statutory theft. In Lawson v. Whitey’s Frame Shop, 42 Conn. App. 599, 601, 682 A.2d 1016 (1996), rev’d in part, 241 Conn. 678, 697 A.2d 1137 (1997), the defendant, acting at the direction of the Hartford police department, towed the automobiles owned by the plaintiffs as a result of the substantial parking fines incurred by the plaintiffs. Allegedly acting pursuant to General Statutes § 14-150 (g) and after providing notice to the department of motor vehicles and the plaintiff, the defendant sold the vehicles for salvage. Id., 603. The plaintiffs then filed an action for conversion and a violation of the Connecticut Unfair Trade Practices Act, General Statutes §§ 42-110a through 42-1 lOq. Lawson v. Whitey’s Frame Shop, supra, 601. After finding in favor of the plaintiffs and awarding $50 per vehicle in compensatory damages, the court trebled that amount pursuant to § 52-564. In doing so, however, the court observed that § 52-564 “may ... be inapplicable because the defendant was acting under a claim of right . . . .” (Internal quotation marks omitted.) Id., 605. We determined that because the court did not find that the defendant intended to deprive the plaintiffs of the automobiles, and stated that the defendant was acting under a claim of right, it was plain error for the court to apply § 52-564 to that case. Id., 606-607.

In Blackwell v. Mahmood, supra, 120 Conn. App. 690, we noted the significance of whether a defendant was acting under a claim of right when faced with a claim for statutory theft. In that case, the trial court did not make a finding that the defendant was acting under a claim of right. Id., 702. It made findings that the defendant was dishonest. Id. “This case is distinguishable from Lawson because in that case the trial court made a clear finding in its memorandum of decision that the defendant was acting under an honestly held claim of right [and therefore it was plain error to award treble damages pursuant to § 52-564].” (Internal quotation marks omitted.) Id., 701.

The documents associated with the summary judgment proceedings demonstrate that the defendant’s physicians believed that they received payment from October, 2007 through May, 2008, for providing on-call services. Lantner stated in his deposition that his time had a value and that that value was not zero. The plaintiff failed to provide any evidence to contradict this belief or to show anything but an honestly held claim of right. In the context of summary judgment, “[i]t is not enough for the moving party merely to assert the absence of any disputed factual issue; the moving party is required to bring forward . . . evidentiary facts, or substantial evidence outside the pleadings to show the absence of any material dispute. . . . Once met, the burden shifts to the party opposing such a motion [to] provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” (Citation omitted; internal quotation marks omitted.) Tuccio Development, Inc. v. Neumann, 114 Conn. App. 123, 126, 968 A.2d 956 (2009). In this case, the plaintiff failed to provide such evidence regarding the intent of the defendant or its physicians.

Finally, we are mindful that “summary judgment is ordinarily inappropriate where an individual’s intent and state of mind are implicated. . . . The summary judgment rule would be rendered sterile, however, if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion. . . . [E]ven with respect to questions of motive, intent and good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of fact.” (Internal quotation marks omitted.) Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn. App. 835, 842, 888 A.2d 104 (2006); Reynolds v. Chrysler First Commercial Corp., 40 Conn. App. 725, 731-32, 673 A.2d 573, cert. denied, 237 Conn. 913, 675 A.2d 885 (1996); see also Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 250, 618 A.2d 506 (1992). As we have stated, the plaintiff failed to provide the necessary factual predicate to raise a genuine issue of a material fact with respect to the intent to deprive element of statutory theft. Accordingly, we conclude that the court properly granted the defendant’s motion for summary judgment as to the second count of the complaint.

The judgment is reversed only with respect to the count of unjust enrichment and the case is remanded for further proceedings according to law. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       General Statutes § 52-564 provides: “Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages.”

       In his affidavit, Steven Hanks, the senior vice president and chief medical officer of the plaintiff, stated that the agreement between the parties originated in April, 2004, following the sudden retirement of a neurosurgeon. On April 19, 2004, the parties entered into an agreement for the provision of neurological services in exchange for a monthly payment of $8958.33. This initial agreement was extended through June 5, 2005. The parties then entered into the agreement described in the complaint.

       The defendant’s physicians sent the following letter to Newton: “We have received your letter of September 2, 2008 regarding reimbursement of payments to [the defendant] for coverage [from] October 2007 through May 2008. We have provided coverage throughout that time, having been placed on the call schedule, and have been appropriately reimbursed by [the plaintiff] for this service.”

       We note that the plaintiff has appealed only from the judgment granting the defendant’s motion for summary judgment and not from the denial of its motion for summary judgment.

       Article IV, § 5, of the bylaws defined the term “active medical staff.” The classification of “Associate Attending Staff” is described as follows: “Appointees to the associate attending staff shall be practitioners of ability and experience who have been certified by the board of their specialty. They shall demonstrate active participation in staff and department functions and in the educational program.”

       The court’s statement appears to be based on the deposition of Lantaer, which was attached to the defendant’s motion for summary judgment.

       The court also noted that the contract was with the defendant and that the staffing agreements were with the defendant’s individual physicians. We question the significance of this fact, particularly in light of the contract’s terms that each of the defendant’s physicians was required to apply for, receive and maintain a medical staff appointment with the plaintiff in accordance with the bylaws and regulations.

       Article VI, § 1 c, provides in relevant part: “Each member of the medical staff shall have a list of delineation of clinical privileges approved by the department chief, the Staff Executive Committee and the governing body (Board of Directors). In recommending approval of clinical privileges for a given practitioner, the department chief should consider the practitioner’s training, evidence of ongoing medical education and where validated external benchmarks exist, the volume of specific clinical activity by that practitioner in comparison to those benchmarks. Procedure or diagnosis-specific clinical outcome data, as available, should also inform the recommendations of the department chief for each practitioner’s clinical privileges.”

       Our Supreme Court has stated that money can be the subject of both conversion and statutory theft. Deming v. Nationwide Mutual Ins. Co., supra, 279 Conn. 771-72.

       Article IV, § 8, of the bylaws provides: “The courtesy staff shall consist of practitioners qualified for staff membership who admit fewer than six patients to the hospital or to the ambulatory surgery unit each year. Members of the courtesy staff must bean active staff member of an accredited hospital in the State of Connecticut. Courtesy staff members shall be appointed to a specific department and must show evidence of participation in a continuing education program approved by the chief of that department. They shall not be eligible to vote or hold office on the medical staff. They will not be required to serve on hospital committees. They will not be required to pay hospital staff dues. They will be required to attend quarterly staff meetings of the medical staff.”


source: Caselaw Access Project

author: WEST, J.

license: Public Domain

text:
    RICHARD MASSE, JR. v. SUSAN PEREZ
    (AC 33276)
    Bear, Sheldon and West, Js.

      Argued September 11
    officially released December 25, 2012

      Jon L. Schoenhom, with whom, on the brief, was Joel A. DeFelice, for the appellant (defendant).

      Tushar G. Shah, for the appellee (plaintiff).
   Opinion

WEST, J.

The defendant, Susan Perez, appeals from the judgment of the trial court rendered in favor of the plaintiff, Richard Masse, Jr., for breach of fiduciary duty, conversion, statutory theft and unjust enrichment. On appeal, the defendant claims that the court improperly (1) awarded treble damages despite insufficient evidence and (2) precluded her from offering relevant evidence. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts, as found by the trial court, and procedural history are relevant to our resolution of this appeal. The defendant is the plaintiffs mother. The plaintiffs grandmother, Velma Krestan, set up a trust in the form of three bank accounts naming the plaintiff as the sole beneficiary and the defendant as the trustee. As of May 29,1995, the trust cumulatively was valued at $79,884.21. From 1995 to 2001, the defendant expended trust funds for the benefit of the plaintiff. On July 16, 2001, the trust cumulatively was valued at $46,522.54. The defendant withdrew these remaining funds from the trust.

On February 21, 2008, the plaintiff filed a seven count amended complaint sounding in breach of fiduciary duty, statutory theft, conversion, fraudulent concealment, fraudulent misrepresentation, unjust enrichment and negligent representation. In his complaint, the plaintiff alleged, inter alia, that the defendant “expunged and/or removed and/or spent the funds for her personal use from the [t]rust without authorization or consent from the plaintiff.” On March 17, 2008, the defendant filed an answer, which denied this allegation, and two special defenses to each count.

Following a trial to the court, held on October 6 and 7, 2010, the court rendered judgment in favor of the plaintiff on January 4, 2011, on the counts sounding in breach of fiduciary duty, statutory theft, conversion and unjust enrichment. In doing so, the court rejected the defendant’s special defenses. In its memorandum of decision, the court found that the plaintiff established that he had sustained compensatory damages in the amount of $46,522.54, and was entitled to interest of 5 percent per year pursuant to General Statutes § 37-3a, and treble damages pursuant to General Statutes § 52-564, for a final award of $206,233.35. On January 20, 2011, the defendant filed a motion to reargue, which the court denied on February 4,2011. This appeal followed.

I

The defendant first claims that the court improperly awarded treble damages for statutory theft pursuant to § 52-564 despite insufficient evidence regarding the defendant’s intent to deprive the plaintiff of moneys, a necessary element of statutory theft. In particular, the defendant contends that the court, in order to establish intent, relied on the single action of the defendant’s withdrawal of the funds and on the adverse inference that the plaintiff used the money for her own benefit, based on its disbelief of the defendant’s testimony that she used the money for the plaintiffs benefit. We disagree.

The following standard of review is applicable to sufficiency of the evidence claims. “[W]e must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in fight of the evidence and the pleadings in the whole record, those facts are clearly erroneous. . . . We also must determine whether those facts correctly found are, as a matter of law, sufficient to support the judgment. . . . [W]e give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses . . . .” (Internal quotation marks omitted.) Rana v. Terdjanian, 136 Conn. App. 99, 113, 46 A.3d 175, cert. denied, 305 Conn. 926, 47 A.3d 886 (2012). “We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached .... Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling.” (Internal quotation marks omitted.) Blackwell v. Mahmood, 120 Conn. App. 690, 701, 992 A.2d 1219 (2010).

“[E]vidence is not insufficient . . . because it is conflicting or inconsistent. [The trier of fact] is free to juxtapose conflicting versions of events and determine which is more credible.” (Internal quotation marks omitted.) Richards v. Richards, 82 Conn. App. 372, 376, 844 A.2d 889 (2004). In this regard, “[w]e are not in a position to question the court’s credibility finding. The sifting and weighing of evidence is peculiarly the function of the trier. [N]othing in our law is more elementary than that the trier is the final judge of the credibility of witnesses and of the weight to be accorded their testimony. . . . The trier is free to accept or reject, in whole or in part, the testimony offered by either party.” (Internal quotation marks omitted.) Chernick v. Johnston, 100 Conn. App. 276, 282, 917 A.2d 1042, cert. denied, 282 Conn. 919, 925 A.2d 1101 (2007).

“Section 52-564 provides: Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages. We consistently have held that [statutory theft under § 52-564 is synonymous with larceny under General Statutes § 53a-119. . . . A person commits larceny within the meaning of ... § 53a-119 when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. An owner is defined, for purposes of § 53a-119, as any person who has a right to possession superior to that of a taker, obtainer or withholder. General Statutes § 53a-118 (a) (5). . . . Therefore, statutory theft requires a plaintiff to prove . . . intent . . . .” (Citations omitted; internal quotation marks omitted.) Rana v. Terdjanian, supra, 136 Conn. App. 113-14. Within the context of larceny, which is synonymous with statutory theft, this court previously has stated that “[i]ntent may be inferred by the [trier of fact] from the conduct of the defendant.” State v. Kimber, 48 Conn. App. 234, 240, 709 A.2d 570, cert. denied, 245 Conn. 902, 719 A.2d 1164 (1998). Our Supreme Court has concluded that the proper standard of proof for statutory theft is the preponderance of the evidence standard. Stuart v. Stuart, 297 Conn. 26, 42-44, 996 A.2d 259 (2010).

In the present case, the court found that the defendant withdrew $46,522.54 from the plaintiffs trust bank account. That finding is supported by the defendant’s own testimony and by the corresponding withdrawal receipt. Although the funds were not withdrawn directly from any of the three bank accounts listed in the plaintiffs amended complaint, the defendant testified that she transferred funds from the trust bank accounts into a joint checking account set up between herself and the plaintiff. The defendant acknowledged that the funds in the joint checking account were the plaintiffs funds to be used for his benefit.

With respect to these funds, the defendant testified that the plaintiff had instructed her to withdraw the funds and to put them in the names of his half brother and half sister because he needed the money out of his account so that he could receive state benefits. The defendant testified that she had been instructed to give $20,000 to the plaintiffs half brother and $20,000 to the plaintiffs half sister. The defendant further testified that the plaintiff had authorized her to spend the remaining funds for the benefit of the plaintiff and his children. The court did not credit this testimony from the defendant regarding the disbursement of the trust funds. The court found that “[t]he defendant was not able to satisfactorily explain how she used this money,” that “[s]he did not use it for the plaintiffs benefit” and that “[t]he money is no longer in a trust account.”

In support of these findings, the court had before it the following testimony. The plaintiff testified that he did not instruct the defendant to give any trust funds to his half brother or half sister. The plaintiff also testified that he did not ask the defendant to use any trust funds for his children. The plaintiff further testified that any items given to his children by the defendant were gifts from the defendant as opposed to authorized expenditures from the trust fund. In fact, the defendant admitted that, , at times, she spent her own funds from a separate account for the benefit of the plaintiffs children. Furthermore, Rolando Perez, the defendant’s former husband and the plaintiffs stepfather, testified that the defendant had, “without telling [the plaintiff] started taking money from his account.” The defendant testified that by 2002, the trust funds were gone. Although the plaintiff admitted that some trust funds were used for his benefit, he testified that $35,000 to $45,000 was missing. Thus, there was sufficient evidence to support the court’s findings that the defendant withdrew funds with the intent to deprive the plaintiff of those funds.

The defendant argues, however, that there was no evidence that she used any of the withdrawn funds for her own benefit. The defendant testified that she gave $20,000 to the plaintiff’s half brother, $20,000 to the plaintiffs half sister and the remainder to the plaintiff and his children. Again, the court did not credit this testimony but, rather, concluded that “[t]he defendant was not able to satisfactorily explain how she used this money.” “[I]t is axiomatic under Connecticut law that, while a [trier of fact] may reject a defendant’s testimony, a [trier of fact] in rejecting such testimony cannot conclude that the opposite is true. . . . Thus, under Connecticut law, the [trier of fact] is not permitted to infer, from its disbelief of the defendant’s testimony, that any of the facts which he denied were true.” (Internal quotation marks omitted.) State v. McCarthy, 105 Conn. App. 596, 619, 939 A.2d 1195, cert. denied, 286 Conn. 913, 944 A.2d 983 (2008). Likewise, a trier of fact “cannot, from a disbelief of a defendant’s testimony, infer that a plaintiffs allegation is correct.” Novak v. Anderson, 178 Conn. 506, 508, 423 A.2d 147 (1979).

Although the plaintiff arguably offered no affirmative evidence that the defendant benefited from the withdrawal of the funds, benefit on behalf of the defendant is not an element of statutory theft. A person commits statutory theft when, “with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner.” (Emphasis added; internal quotation marks omitted.) Rana v. Terdjanian, supra, 136 Conn. App. 114. There was sufficient evidence that the defendant withdrew the funds with the requisite intent. “Intent may be inferred by the [trier of fact] from the conduct of the defendant.” State v. Kimber, supra, 48 Conn. App. 240. Such an inference may be drawn from a defendant’s withdrawal of trust funds when the funds are not used for the benefit of the beneficiary and the trust has been exhausted. Although the defendant testified that she was instructed to -withdraw the funds, the plaintiff testified that he never authorized the defendant to withdraw the funds. “The trier is free to accept or reject, in whole or in part, the testimony offered by either party.” (Internal quotation marks omitted.) Chernick v. Johnston, supra, 100 Conn. App. 282.

In Suarez-Negrete v. Trotta, 47 Conn. App. 517, 521-22, 705 A.2d 215 (1998), this court concluded that evidence presented was sufficient to establish statutory theft when, inter alia, “the defendant’s conduct was unauthorized.” Likewise, in the present case, there was sufficient evidence to conclude that the defendant’s withdrawal of the plaintiffs funds was unauthorized and, therefore, constitutes an intentional deprivation of property for the purpose of establishing statutory theft. Because § 52-564 provides that any person committing statutory theft “shall pay the owner treble his damages” the court’s award of treble damages was not improper.

II

The defendant next claims that the court improperly precluded her from offering relevant evidence regarding the plaintiffs state aid eligibility applications. The defendant contends that she attempted to offer this evidence in the form of a written motion seeking the plaintiffs authorization for disclosure of records from the department of social services (department) and by way of cross-examination of the plaintiff as to the content of those records, but that the court precluded such offers of evidence. The defendant argues that these decisions constitute reversible error. We disagree.

The crux of this claim concerns the court’s refusal to order the plaintiff to authorize disclosure of records from the department. “We have long recognized that the granting or denial of a discovery request ... is subject to reversal only if such an order constitutes an abuse of . . . discretion.” (Internal quotation marks omitted.) Coss v. Steward, 126 Conn. App. 30, 46, 10 A.3d 539 (2011). Practice Book § 13-2 provides in relevant part: “In any civil action . . . where the judicial authority finds it reasonably probable that evidence outside the record will be required, a party may obtain in accordance with the provisions of this chapter discovery of information or disclosure, production and inspection of papers, books, documents and electronically stored information material to the subject matter involved in the pending action, which are not privileged, whether the discovery or disclosure relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, and which are within the knowledge, possession or power of the party or person to whom the discovery is addressed. Discovery shall be permitted if the disclosure sought would be of assistance in the prosecution or defense of the action and if it can be provided by the disclosing party or person with substantially greater facility than it could otherwise be obtained by the party seeking disclosure. ...” (Emphasis added.) Accordingly, “[t]he granting or denial of a discovery request rests in the sound discretion of the court. . . . The court’s discretion applies to decisions concerning whether the information is material, privileged, substantially more available to the disclosing party, or within the disclosing party’s knowledge, possession or power . . . .” (Citations omitted, emphasis added.) Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 57-60, 459 A.2d 503 (1983).

The claim also concerns the court’s refusal to permit cross-examination of the plaintiff regarding the content of those records. “A trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence . . . [and its] ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling .... Moreover, evidentiary rulings will be overturned on appeal only where there was ... a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) Gianetti v. Norwalk Hospital, 304 Conn. 754, 786, 43 A.3d 567 (2012).

Prior to trial, the court considered the defendant’s motion seeking the plaintiffs authorization for disclosure of records from the department. The defendant’s counsel admitted that he was in possession of the plaintiffs state aid eligibility applications through 2007, but sought records subsequent thereto. The court reserved any decision until cross-examination of the plaintiff. During cross-examination of the plaintiff, the defendant’s counsel renewed the defendant’s motion. The plaintiffs counsel objected on the ground that the defendant had records through 2007 and that any records thereafter were irrelevant. The court agreed with the plaintiffs counsel and concluded: “I don’t understand what further information will grant you. ... I’ll consider [the plaintiffs] testimony.” The defendant’s counsel then attempted to elicit responses from the plaintiff concerning the content of the subject records and the plaintiffs counsel again objected. The court concluded that such testimony was irrelevant.

The defendant now challenges the court’s finding that the evidence was irrelevant. “All relevant evidence is admissible, except as otherwise provided by the constitution of the United States, the constitution of this state, the Code or the General Statutes. Evidence that is not relevant is inadmissible.” Conn. Code Evid. § 4-2. “Evidence is relevant if it has any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence. . . . Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable.” (Citation omitted; internal quotation marks omitted.) Drake v. Bingham, 131 Conn. App. 701, 708, 27 A.3d 76, cert. denied, 303 Conn. 910, 32 A.3d 963 (2011).

“Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter. . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative.” (Internal quotation marks omitted.) Lombardi v. East Haven, 126 Conn. App. 563, 572, 12 A.3d 1032 (2011). Furthermore, “[t]he fact that the [trier of fact] would have ... to rely on inferences to make [a] determination does not preclude the admission of . . . evidence. . . . The trial court [however] properly could [exclude] evidence where the connection between the inference and the fact sought to be established was so tenuous as to require the [trier of fact] to engage in sheer speculation.” (Citations omitted.) Bovat v. Waterbury, 258 Conn. 574, 596, 783 A.2d 1001 (2001). “Because the law furnishes no precise or universal test of relevancy, the question must be determined on a case by case basis according to the teachings of reason and judicial experience.” (Internal quotation marks omitted.) State v. Erickson, 297 Conn. 164, 178, 997 A.2d 480 (2010).

In the present case, the defendant’s counsel admitted that he was in possession of the plaintiffs state aid eligibility applications through 2007. The defendant’s counsel submitted into evidence one state aid eligibility application, dated September 12, 2001. Rather than attempt to submit additional applications into evidence, the defendant’s counsel sought the plaintiffs authorization for disclosure of additional records from the department and attempted to elicit responses from the plaintiff concerning the content of those records. The defendant argues that such evidence was relevant to her claim that the plaintiff had instructed her to withdraw the funds for the purpose of his state aid eligibility because it shows that the plaintiff received an ongoing benefit from the defendant’s withdrawal of the trust funds. There was sufficient evidence in the defendant’s possession in the form of the plaintiff’s state aid eligibility applications through 2007 for this purpose. Subsequent records would be “ ‘merely cumulative.’ ” Lombardi v. East Haven, supra, 126 Conn. App. 572.

The defendant further argues that such evidence was relevant to the plaintiff’s credibility because it presents the potential for “repetitive and false/fraudulent statements” made by the plaintiff in order to continue to receive state aid. On the one state aid eligibility application submitted into evidence, the plaintiff indicated that he did not have trust funds or expect to receive an inheritance. In its memorandum of decision, the court considered the admitted state aid eligibility application in the context of the defendant’s special defense of unclean hands. The court concluded that “because the defendant failed to keep the plaintiff informed as to the details of the trust, it is possible that the plaintiffs response on the document was motivated by ignorance and not deception.” Prior to 2007, however, the trust funds were exhausted and, as such, any negative response to these questions on any subsequent applications would be irrelevant. Thus, the court did not abuse its discretion when it refused to order the plaintiff to authorize the disclosure of records from the department subsequent to 2007 or to permit cross-examination of the plaintiff as to the content of those records.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant’s first special defense alleged that the plaintiffs action is barred by the statute of limitations pursuant to General Statutes § 52-577. The defendant’s second special defense alleged that each of the plaintiffs claims is barred by the doctrine of unclean hands.

       Although the defendant claims that the trial court improperly awarded damages generally, the entirety of her brief is directed against the court’s award of treble damages for statutory theft. To the extent that the defendant claims that the court improperly awarded damages for breach of fiduciary duty, conversion and unjust enrichment, we decline to address these claims on account of inadequate briefing. See State v. Koslik, 137 Conn. App. 855, 858-59 n.7, 49 A.3d 1067 (2012) (“It is well settled that [w]e are not required to review claims that are inadequately briefed. ... We consistently have held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . [F]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs.” [Emphasis in original; internal quotation marks omitted.]).

       Although the trial transcript identifies him as “Orlando Perez,” evidence in the record identifies him as “Rolando Perez.”

       Although there was evidence that the plaintiff tangentially may have benefited from the defendant’s withdrawal of the funds by way of qualifying for state aid, the court found that the defendant did not use the funds for the plaintiffs benefit.

       The court concluded that the defendant’s withdrawal of the funds “establishes intent.” The defendant argues that withdrawal alone “is a neutral action that can be proper or improper depending on the nature of the use and circumstances.” Regardless of the propriety of this conclusion, the court made additional findings and “[w]e . . . must determine whether those facts correctly found are, as a matter of law, sufficient to support the judgment.” (Internal quotation marks omitted.) Rana v. Terdjanian, supra, 136 Conn. App. 113.

       The defendant submitted into evidence one application dated September 12, 2001.

       The plaintiff argues that the defendant did not preserve this claim for appeal because she had records from the department in her possession but failed to offer them into evidence. “[A]n appellate court is under no obligation to consider a claim that is not distinctly raised at the trial level. . . . The requirement that [a] claim be raised distinctly means that it must be so stated as to bring to the attention of the court the precise matter on which its decision is being asked. . . . The reason for the rule is obvious: to permit a party to raise a claim on appeal that has not been raised at trial — after it is too late for the trial court ... to address the claim — would encourage trial by ambuscade, which is unfair to both the trial court and the opposing party.” (Emphasis in original; internal quotation marks omitted.) Przekopski v. Zoning Board of Appeals, 131 Conn. App. 178, 189, 26 A.3d 657, cert. denied, 302 Conn. 946, 30 A.3d 1 (2011). In the present case, however, the defendant, by written motion, sought the plaintiffs authorization for disclosure of additional records from the department and sought testimony concerning the content of those additional records by way of cross-examination of the plaintiff. The court denied the motion and sustained the objection of the plaintiffs counsel regarding such testimony. Although the defendant’s second claim was stated generally, it clearly concerned these two decisions of the court. The defendant’s second claim, therefore, distinctly was raised by the defendant and addressed by the court. Accordingly, the defendant’s second claim properly was preserved for appeal.

       The plaintiff testified that he did not believe that he had any trust funds nor did he expect to receive an inheritance because the defendant was still alive and the defendant had informed him that inheritance went from his grandmother to the defendant and then, upon the defendant’s death, to him.

       At trial, the defendant’s counsel contended that the applications require the disclosure of any pending actions and, therefore, argued that additional applications may be relevant as to the plaintiffs credibility to prove whether he disclosed the existence of the present action. The defendant’s counsel also attempted to cross-examine the plaintiff on whether he disclosed the existence of the present action on subsequent applications. Such an inquiry based on speculation that the plaintiff may have provided a false statement on an application years after the events at issue in this case, is far too tenuous. Again, there was sufficient evidence in the defendant’s possession in the form of the plaintiffs state aid eligibility applications through 2007. “A trial is not an opportunity for counsel to embark on a fishing expedition or to induce fact finders to engage in speculation.” Deegan v. Simmons, 100 Conn. App. 524, 541, 918 A.2d 998, cert. denied, 282 Conn. 923, 925 A.2d 1103 (2007).


author: PER CURIAM.

text:
    SUSAN L. MORGAN v. JAY T. MORGAN
    (AC 33939)
    Gruendel, Beach and Sheldon, Js.
    Argued September 21
    officially released December 25, 2012

      Susan L. Morgan, pro se, the appellant (plaintiff).

      Jay T. Morgan, pro se, the appellee (defendant).
   Opinion

PER CURIAM.

In this dissolution action, the self-represented plaintiff, Susan L. Morgan, appeals from the judgment of the trial court ordering her to sell real property known as 3 East Pattagansett Road in Niantic (property). The nature of her appeal is twofold. The plaintiff first raises a bevy of claims challenging the propriety of the order requiring her to sell the property. In addition, the plaintiff asks this court to assess monetary damages against the self-represented defendant, Jay T. Morgan, for injuries she allegedly sustained as a result of her compliance with that order. We dismiss as moot the plaintiffs challenge to the order requiring her to sell the property and affirm the judgment in all other respects.

The relevant facts are as follows. The parties married in 1991. Following the subsequent breakdown of their marriage, the parties entered into a separation agreement that the court incorporated into its judgment of dissolution. That agreement provided, inter alia, that the property “shall be sold and after all the mortgages and taxes have been satisfied, the net proceeds shall be divided evenly between the parties.” Approximately one month later, on July 7, 2008, the parties entered into a postjudgment agreement that was approved by the trial court. Relevant to this appeal is paragraph three of that agreement, which required the defendant to “[quitclaim] to the plaintiff the [property]. . . . The plaintiff shall have thirty months to refinance the [property] to remove the defendant’s name from same. Should the plaintiff fall thirty days behind in payment of the mortgage, the property shall be immediately listed for sale under the terms of the original [separation agreement].”

On January 11, 2011, the defendant filed a motion for contempt due to the plaintiffs failure to comply with the foregoing. In its April 7, 2011 memorandum of decision, the court denied said motion, finding no evidence that the plaintiff wilfully violated a court order. At the same time, the court observed that the July 7, 2008 order required the plaintiff to refinance the property within thirty months. Because “more than thirty months have now elapsed and the property has not been refinanced to remove the defendant from the mortgage obligation,” the court ordered that “the property shall be listed for sale on or before April 30, 2011.”

On July 14, 2011, the defendant filed a second motion for contempt due to the plaintiffs failure to list the property for sale. The court granted that motion and entered an order requiring the plaintiff to “file a copy of the notice of fisting for [the property] ... or a capias will be issued.” The defendant filed a third motion for contempt on August 9, 2011, predicated on the plaintiffs continued refusal to comply with that order. Following a hearing on October 5,2011, the court rendered an oral decision. It stated: “All right. I’m going to give [the plaintiff] a chance . . . but it’s not nearly the chance [she is] proposing. I’m going to enter the following orders. First, [the plaintiff] will have until January 1, 2012, to sell the property at whatever price she deems fit. On January 1, 2012, if the property is not sold it shall be reduced to $256,000. If the property is not sold or refinanced so as to remove [the defendant’s] name from the mortgage by March 1, 2012, the property is ordered transferred to the defendant . . . pursuant to General Statutes § 46b-81, wherein the court may pass title to real estate to either party ... or may order the sale of such real property without any act by either the husband or the wife when in the judgment of the court it is the proper mode to carry the decree into effect. At that time [the defendant] as the owner of the property will pursue its sale [and] will hold any proceeds in escrow for [the plaintiffs] benefit as it is equitably her house and she should be entitled to the proceeds.” This appeal followed.

I

On appeal, the plaintiff challenges the propriety of the court’s order requiring her to sell the property for $256,000. It is undisputed, however, that the plaintiff sold the property to a third party for that sum on February 14, 2012, as the plaintiff admits in her appellate brief. That action renders the present appeal moot.

“Mootness implicates [the] court’s subject matter jurisdiction and is thus a threshold matter for us to resolve. ... It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. ... An actual controversy must exist not only at the time the appeal is taken, but also throughout the pen-dency of the appeal. . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.” (Internal quotation marks omitted.) Giaimo v. New Haven, 257 Conn. 481, 492-93, 778 A.2d 33 (2001); see also Patterson v. Council on Probate Judicial Conduct, 215 Conn. 553, 561, 577 A.2d 701 (1990) (not province of appellate courts to decide moot questions disconnected from granting of actual relief). Because mootness implicates subject matter jurisdiction, it presents a question of law over which our review is plenary. RAL Management, Inc. v. Valley View Associates, 278 Conn. 672, 680, 899 A.2d 686 (2006).

The plaintiffs sale of the property to a nonparty during the pendency of this appeal renders moot her challenge to the propriety of the order requiring the sale of the property. See Fiddelman v. Redmon, 59 Conn. App. 481, 483-84, 767 A.2d 671 (2000). Because that sale cannot now be undone, we cannot afford her any practical relief. Id. This court, therefore, lacks jurisdiction to entertain the plaintiffs claims concerning the order requiring the sale of the property.

II

In the concluding portion of her appellate brief, the plaintiff asks this court to assess monetary damages against the defendant for injuries she allegedly sustained as a result of her compliance with the court’s orders. That request is unpreserved, as she failed to raise any claim before the trial court for damages resulting from any conduct on the part of the defendant. Moreover, the determination of damages involves a question of fact. See, e.g., Bhatia v. Debek, 287 Conn. 397, 419, 948 A.2d 1009 (2008). “[I]t is axiomatic that this appellate body does not engage in fact-finding. Connecticut’s appellate courts cannot find facts; that function is, according to our constitution, our statute, and our cases, exclusively assigned to the trial courts.” (Internal quotation marks omitted.) Hogan v. Lagosz, 124 Conn. App. 602, 618, 6 A.3d 112 (2010), cert. denied, 299 Conn. 923, 11 A.3d 161 (2011). Accordingly, as an appellate tribunal, this court cannot decide the claim for damages presented by the plaintiff in this appeal.

The plaintiffs appeal from the judgment ordering her to sell the property is dismissed as moot. The judgment is affirmed in all other respects.

       As the court noted during the contempt hearing, the plaintiffs financial affidavit estimated the value of the property to be $300,000.

       The court also found the defendant in contempt of its April 7,2011 order. As a result, the court ordered the plaintiff to pay the defendant $1000 within thirty days. Although the plaintiff amended her original appeal before this court to challenge the propriety of that judgment, she has neither included such a claim in her statement of issues nor briefed that claim in any manner. We thus deem it abandoned. See Caruso v. Bridgeport, 285 Conn. 618, 624 n.5, 941 A.2d 266 (2008).

       The plaintiff asks this court to find that she suffered, inter alia, $27,200 in damages “for the loss of income” due to her sale of the property, $50,000 in damages “for the emotional toll this has had on her health” and $200,000 for what she characterizes as lost “retirement money.”


author: DUPONT, J.

text:
    LAURA CIRINNA v. RAFAL KOSCIUSZKIEWICZ
    (AC 33773)
    Robinson, Bear and Dupont, Js.
    Argued September 7
    officially released December 25, 2012

      Jeffrey A. McChristian, for the appellant (defendant).

      Stephanie S. Baier, for the appellee (plaintiff).
   Opinion

DUPONT, J.

The defendant, Rafal Kosciuszkiewicz, appeals from the trial court’s judgment in favor of the plaintiff, Laura Cirinna, in which the court concluded that the plaintiff had an easement by prescription over a driveway located on the defendant’s property, and permanently enjoining the defendant from erecting a fence on the driveway that would block access to the rear of the plaintiffs property. The issues raised on appeal are whether (1) the plaintiff established an easement by prescription and (2) the court properly exercised its discretion in denying the defendant’s motion for sequestration. We affirm the judgment of the trial court.

The court found the following facts by a preponderance of the evidence. The dispute arises from the plaintiffs use of a driveway running from Winthrop Street in New Britain between and to the rear of the properties owned by the plaintiff and the defendant. As is typical for the Winthrop Street block of houses, it is the only driveway to which both adjoining property owners have access to reach the rear of their properties. For decades, the driveway was used by the occupants of both 75 and 77-79 Winthrop Street to gain access to the rear of their respective properties. The plaintiff owns the property at 75 Winthrop Street. Currently, her sister, Maria Cirinna, occupies the top floor and the plaintiffs tenants reside on the bottom floor.

The defendant owns and resides at 77-79 Winthrop Street, which lies to the west of the plaintiffs property. Running along the eastern border of and wholly situated on the defendant’s property is the paved driveway at issue, which leads to the rear of his property and to a paved parking area and a single car garage located on the plaintiffs property. The plaintiff maintains the separate paved area of the driveway, which the plaintiffs sister uses to park her vehicle and the vehicle of her flaneé. The plaintiffs tenants also park their vehicles there. The plaintiffs family purchased 75 Winthrop Street in July, 1974. She and her family have used the driveway openly and continuously to access their property since that time without any complaints by the various occupants of the property at 77-79 Winthrop Street.

It is very common for property owners to share driveways in the plaintiffs neighborhood, and there was no inquiry about the ownership or use of the driveway in question before 2009. At one point, the previous owners of 77-79 Winthrop Street asked the plaintiffs mother to pave a portion of their backyard when the plaintiffs mother decided to pave the back area of her own property. These neighbors compensated the plaintiffs mother for this work.

The defendant purchased the two family property at 77-79 Winthrop Street in February, 2008. During the first two years he owned the property, there were no issues with the plaintiff or her use of the driveway. The defendant first became upset with the plaintiffs use of the driveway in December, 2009, when the plaintiff did not contribute to snow removal. During the summer of 2010, he became upset further when a vehicle using the driveway to access the plaintiffs property allegedly drove recklessly and played loud music, and when someone allegedly damaged a retaining wall on the defendant’s property. After conducting a property survey and discovering that he owned the land on which the driveway is located, the defendant erected a fence across the back of the driveway, blocking access to the plaintiffs parking area and garage. Since that time, the plaintiffs sister, the sister’s fiancé and the plaintiffs tenants have parked on the street or in a municipal parking garage.

The plaintiff filed a three count complaint in March, 2011, alleging prescriptive and express easements over the defendant’s driveway and seeking damages based on the defendant’s alleged wilful, wanton and malicious conduct. The defendant filed an answer and special defenses to the plaintiffs complaint, alleging that if an express easement existed in the defendant’s property deeds, it was unenforceable for ambiguity, and that the plaintiff forfeited any such rights through excessive use of the driveway. The defendant filed a counterclaim against the plaintiff and sought monetary damages for trespass and nuisance; he also sought to quiet title pursuant to General Statutes § 47-31.

A trial to the court was held on July 20, 2011. The plaintiff, her mother and her sister testified regarding their use of the driveway over the past thirty-five years. The defendant testified that he did not have any knowledge of a reference to a shared driveway in his property deed. The defendant did not offer any witnesses to contradict the plaintiffs claimed usage of the driveway, but rather claimed that the use was permissive.

On the basis of the evidence presented at trial, the court determined that the plaintiff had established a prescriptive easement pursuant to General Statutes § 47-37 by a preponderance of the evidence and that the defendant had not demonstrated a forfeiture of those rights. The court determined that neither party had clearly established the metes and bounds of the easement in dispute and, therefore, the court determined the scope of the easement when it determined that the plaintiff had proven her claim of an easement by prescription and when it adjudicated the defendant’s action to quiet title. The court defined the easement as consisting of the “concrete driveway and wheel tracks existing on the eastern side of the [defendant’s] property, 77-79 Winthrop Street and so much of the bituminous pavement north of the driveway and wheel tracks as extends to the opening of the parking area and entrance to the garage, both located on the western side of the [plaintiffs] property, 75 Winthrop Street, so as to allow access to the [plaintiffs] parking area and garage.” This appeal followed.

I

The defendant first claims that the court improperly concluded that the plaintiff had acquired an easement by prescription over the defendant’s driveway. Specifically, the defendant maintains that the plaintiff did not establish that her predecessors in title had used the driveway under a claim of right for the required statutory period, but rather did so permissively. We disagree.

This appeal presents a mixed question of law and fact. “Whether a [right-of-way] by prescription has been acquired presents primarily a question of fact for the trier after the nature and character of the use and the surrounding circumstances have been considered. . . . When the factual basis of a trial court’s decision [regarding the existence of a prescriptive easement] is challenged, our function is to determine whether, in light of the pleadings and evidence in the whole record, these findings of fact are clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling.” (Citation omitted; internal quotation marks omitted.) Slack v. Greene, 294 Conn. 418, 426-27, 984 A.2d 734 (2009).

“The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Waterbury v. Washington, 260 Conn. 506, 576, 800 A.2d 1102 (2002). We therefore review the facts found by the trial court under a clearly erroneous standard. We must also undertake, however, a plenary review of the court’s legal conclusion that the facts that appear in the record support the establishment of a prescriptive easement pursuant to § 47-37.

We begin our analysis by setting forth the requirements for establishing a prescriptive easement. Section § 47-37 provides: “No person may acquire a right-of-way or any other easement from, in, upon or over the land of another, by the adverse use or enjoyment thereof, unless the use has been continued uninterrupted for fifteen years.”

“In applying [§ 47-37] ... [a] party claiming to have acquired an easement by prescription must demonstrate that the use [of the property] has been open, visible, continuous and uninterrupted for fifteen years, and made under a claim of right.” (Emphasis added; internal quotation marks omitted.) Slack v. Greene, supra, 294 Conn. 427; see also St. Germain v. Hurd, 128 Conn. App. 497, 501-502, 17 A.3d 516 (2011). Aparty seeking an easement by prescription must demonstrate these requirements by a “fair preponderance of the evidence.” McCullough v. Waterfront Park Assn., Inc., 32 Conn. App. 746, 753, 630 A.2d 1372, cert. denied, 227 Conn. 933, 632 A.2d 707 (1993).

“There can be no claim of right unless the use is unaccompanied by any recognition of [the] right [of the owner of the servient tenement] to stop such use. [Thus, a] use by express or implied permission or license cannot ripen into an easement by prescription.” (Internal quotation marks omitted.) Bean-Corveira v. Milton D. Friedman, Inc., 83 Conn. App. 826, 830, 851 A.2d 380, cert. denied, 271 Conn. 909, 859 A.2d 560 (2004). “In Connecticut, although the burden of proof is on the party claiming a prescriptive easement . . . there is no presumption of permissive use to be overcome.” (Citation omitted.) Reynolds v. Soffer, 190 Conn. 184, 188, 459 A.2d 1027 (1983). “When the defendant raises permission by way of a special or affirmative defense, the burden of proof rests on the defendant . . . who must prove the special defense by a fair preponderance of the evidence.” (Citation omitted.) Zabaneh v. Dan Beard Associates, LLC, 105 Conn. App. 134, 140, 937 A.2d 706, cert. denied, 286 Conn. 916, 945 A.2d 979 (2008).

The court found, based on testimony presented by the plaintiffs witnesses, that the plaintiff, her predecessors in title and occupancy, and the prior and current tenants of the property at 75 Winthrop Street had used the driveway located on the defendant’s property openly and visibly since 1974, under a claim of right. The defendant admits that the plaintiff and her predecessors’ use of the driveway was open and visible, but contends that it was permissive. He argues that the court erroneously based its finding that the plaintiff and her predecessors used the driveway under a claim of right solely on the fact that “the [prior] owners of 77-79 Winthrop Street asked [the plaintiffs] parents to have a portion of its backyard paved in asphalt along with their own and reimbursed them for this expense.”

The trial court’s finding that the defendant’s predecessors in title contributed to the cost of paving a small portion of their own backyard indicates that the plaintiffs parents recognized that the area being paved, which contained the back parking lot and part of the driveway, was located on the defendant’s property. As the paved area did not include a majority of the driveway, but rather “a little gap ... a step up onto their concrete,” it is largely irrelevant to the claim of a prescriptive easement. The cooperation between owners for the payment of asphalt does not, therefore, negate the plaintiffs claim of right, as it did not amount to permission by the prior owners of the defendant’s property to use the driveway. Furthermore, the defendant offered no evidence to demonstrate what part of the driveway was paved by the plaintiff, or how this contribution amounted to an acknowledgement of the defendant’s right to control or restrict the plaintiffs use of the entire driveway.

The defendant presented only his own testimony regarding his limited knowledge of the prior use of the driveway by the plaintiffs predecessors. The trial court specifically found that “there was no credible evidence of any express or implied permission or license given by the owners of 77-79 Winthrop Street during the time of ownership by the plaintiff or her parents, dating back to 1974. Neither was there evidence sufficient to establish ‘neighborly accommodation,’ which might negate a prescriptive easement.” In light of the record as a whole, the trial court reasonably could have concluded that the defendant failed to prove permissive use by a preponderance of the evidence.

The defendant further maintains that the plaintiff did not satisfy her burden of proof to establish use of the driveway under a claim of right. “The requirement that the [use] must be exercised under a claim of right does not necessitate proof of a claim actually made and brought to the attention of the owner .... It means nothing more than a [use] as of right, that is, without recognition of the right of the landowner, and that phraseology more accurately describes it than to say that it must be under a claim of right. . . . [When] there is no proof of an express permission from the owner of the servient estate, on the one hand, or of an express claim of right by the person or persons using the way, on the other, the character of the [use], whether adverse or permissive, can be determined as an inference from the circumstances of the parties and the nature of the [use]. ... A trier has a wide latitude in drawing an inference that a [use] was under a claim of right.” (Citation omitted; internal quotation marks omitted.) Slack v. Greene, supra, 294 Conn. 428.

It is well established that evidence that the party claiming a prescriptive use never asked for nor was given permission to use the property will support a finding that the use was made under claim of right. See, e.g., Gallo-Mure v. Tomchik, 78 Conn. App. 699, 707-708, 829 A.2d 8 (2003); McManus v. Roggi, 78 Conn. App. 288, 295-97, 826 A.2d 1275 (2003) (plaintiffs testimony that “she never asked for permission to use” property in dispute supported trial court’s conclusion that use was adverse). The fact finder’s determination that the servient estate was used under a claim of right will be sustained unless that determination is manifestly unsupportable. See Gregory’s, Inc. v. Baltim, 142 Conn. 296, 299-300, 113 A.2d 588 (1955).

“It is familiar law that [it is] for the trial court to weigh the evidence and [to] determine the credibility of the witnesses. This court cannot and will not weigh the evidence contained in the record before us. ... If there is sufficient evidence in the record in support of the decision of the trial court such decision must be affirmed. . . . We [therefore] cannot second-guess the trial court’s assessment of the credibility of the witnesses .... It is the trial court [that] had an opportunity to observe the demeanor of the witnesses and parties; thus, it is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom.” (Internal quotation marks omitted.) Slack v. Greene, supra, 294 Conn. 430-31.

During the trial, the plaintiff offered testimony to support her claim of an easement by prescription. The plaintiffs sister testified that “[t]here was never any question of who the driveway belonged to. . . . It was just a driveway that was there that both used commonly. ... It wasn’t a neighborly arrangement, there was never any discussion as far as the driveway. It existed, we used it and that was never a problem. ” The plaintiff s mother also indicated that she had not used the driveway as a result of a friendly accommodation by the defendant’s predecessors, but that “[t]he driveway was one and we had a right to go. That’s it.”

The foregoing testimony established that the plaintiff and her predecessors did not ask for, nor were ever given permission to use the defendant’s driveway, but rather had used it under the belief that it was their right to do so. The trial court found this testimony to be credible, and there is sufficient evidence in the record to support its conclusion that the plaintiffs use of the defendant’s driveway was open, visible and under a claim of right for the prescribed statutory period. No fact on which the finding of a prescriptive easement was based is shown to have been clearly erroneous. In light of the record as a whole, the court properly applied the facts found to the requirements of § 47-37 in determining that the elements necessary for establishing an easement by prescription had been met by a preponderance of the evidence.

II

We next address the defendant’s claim that the trial court improperly denied his motion to sequester the plaintiffs witnesses. The defendant argues that because all of the plaintiffs witnesses testified about their use of the driveway over the past thirty-five years, it was more probable than not that the testimony of any one witness, when heard by the others, would cause another witness to corroborate falsely the testimony of a prior witness, and thereby affect the conclusion of the court that the plaintiff had established an easement by prescription. The defendant maintains that the court abused its discretion when it denied his motion to sequester. We disagree.

“Sequestration of witnesses ... is not demandable as a right but rests in the discretion of the trial court. . . . The court’s action is subject to review and reversal for abuse of discretion.” (Citations omitted.) State v. Pikul, 150 Conn. 195, 199-200, 187 A.2d 442 (1962). In reviewing whether there was an abuse of discretion, every reasonable presumption in favor of the trial court’s ruling must be made. See Wyszomierski v. Siracusa, 290 Conn. 225, 233, 963 A.2d 943 (2009).

“In a civil proceeding, a court has the discretion to sequester any witness, including a party, if (1) seasonably requested, (2) specific and supported by sound reasons, and (3) false corroboration would probably result.” (Internal quotation marks omitted.) In re Christopher A., 22 Conn. App. 656, 663, 578 A.2d 1092 (1990). Although sequestration is requested more frequently in criminal trials, there should be no distinction in its application between civil and criminal cases. See 6 J. Wigmore, Evidence (6th Ed. 1976) § 1839, p. 470.

In the present case, the court found that the defendant’s motion to sequester was filed in a timely fashion, but nonetheless denied his request because the defendant did not demonstrate a “good faith reason” that false testimony was likely, and noted that sequestration in civil cases is not typical. The defendant argues that the trial court stated the law incorrectly when it indicated that sequestration in civil cases is “very unusual.”

The question, however, is not whether sequestration is more or less likely depending upon whether the underlying action is civil or criminal, but whether the rationale for sequestration has been satisfied. Although the court stated that sequestration is unusual in the civil context, it did not base its denial of the defendant’s motion on that conclusion as a matter of law. Instead, the court explained that there was no reason to believe that the plaintiffs witnesses would testify falsely, and any such tailoring could be addressed through cross-examination of the plaintiffs witnesses.

Furthermore, the defendant has not pointed to any evidence in the record establishing that false corroboration actually resulted from the denial of his motion to sequester. The plaintiff and her witnesses were related by blood and had many occasions over a long period of time prior to trial to discuss the usage of the driveway. It is unlikely that hearing the testimony of the same people in a courtroom would be likely to change the testimony of any of the witnesses. The court was entitled to exercise its discretion in assessing the credibility of the witnesses, particularly given the defendant’s ability to cross-examine any witness. We conclude, therefore, that the court did not abuse its discretion in denying the defendant’s motion to sequester.

The judgment is affirmed.

In this opinion the other judges concurred.

       On the basis of testimony and exhibits submitted to the court, the court concluded that the language in the warranty deeds in the defendant’s chain of title was too ambiguous to create an express easement in the plaintiff. The court further concluded that because the plaintiff had a right-of-way over the defendant’s driveway, the defendant’s claim of trespass “must fail” and found in favor of the plaintiff as to the defendant’s claim of nuisance. Neither the defendant nor the plaintiff appeals from the denial of these claims or the denial of attorney’s fees or costs to either party.

       Ownership of the property on which the driveway is located is not disputed on appeal, as neither party takes issue with the trial court’s decision establishing the boundaries of the defendant’s property and vesting title to the driveway in the defendant.

       We note that the phrase “under a claim of right” is not part of the statutory language of § 47-37. This language, however, has been consistently added by our Supreme Court and Appellate Court case law. See, e.g., Slack v. Greene, supra, 294 Conn. 427; Reynolds v. Soffer, 190 Conn. 184, 188-89, 459 A.2d 1027 (1983); Klar Crest Realty, Inc. v. Rajon Realty Corp., 190 Conn. 163, 167-68, 459 A.2d 1021 (1983); Andrzejczyk v. Advo System, Inc., 146 Conn. 428, 431-32, 151 A.2d 881 (1959); St. Germain v. Hurd, 128 Conn. App. 497, 501-502, 17 A.3d 516 (2011); Wadsworth v. Zahariades, 1 Conn. App. 373, 376, 472 A.2d 29 (1984). We therefore find it necessary to do the same, particularly since the word “adverse” in § 47-37 can reasonably be equated with the words “under a claim of right.”

       The plaintiff did not reference a specific statute in her complaint, simply alleging that she had established the elements necessary for an easement by prescription over the defendant’s driveway. In its memorandum of decision, the trial court inferred that the plaintiff brought her claim pursuant to § 47-31, which relates to quiet title claims and is not involved in this appeal. In reaching its decision, however, the court correctly applied the language of § 47-37. As the briefs of both parties treat the issues involved in this appeal pursuant to § 47-37, with particular emphasis on whether the plaintiff proved by a preponderance of the evidence that she used the property under a claim of right, we attribute the court’s reference to § 47-31 as a scrivener’s error and evaluate the claim of a prescriptive easement under § 47-37. See, e.g., State v. Hilton, 45 Conn. App. 207, 208 n.2, 694 A.2d 830, cert. denied, 243 Conn. 925, 701 A.2d 659 (1997), cert. denied, 522 U.S. 1134, 118 S. Ct. 1091, 140 L. Ed. 2d 147 (1998).

       Although the plaintiff also alleged an express easement in her complaint, the trial court determined that this did not necessarily defeat adversity because the language in the warranty deeds in the defendant’s chain of title did not unambiguously grant such an express easement. Even in a case where the use of servient property began as the result of an ineffective grant, “that fact does not negate its adverse character but tends rather to emphasize that it was made under a claim of right.” Klein v. DeRosa, 137 Conn. 586, 589, 79 A.2d 773 (1951). Thus, the plaintiffs allegation that an express easement existed is not sufficient to undercut her claim of right.

       The court’s decision granting an easement partially relied on the testimony of the plaintiff herself, although this testimony was mistakenly attributed in its memorandum of decision to the plaintiffs sister, who also testified. This erroneous attribution did not, however, affect the credibility of the plaintiffs testimony.

       The plaintiffs mother further testified:
      “Q. And you got along with [the neighbors] regarding the use of the driveway, didn’t you?

        “A. We never have problem with the driveway. I never mention about the driveway.
      “Q. And is it fair to say, ma’am, that your use of the driveway was accomplished by means of the neighborly, friendly relations you had with the neighboring property?
      “A. No. No. The driveway was one and we had a right to go. That’s it.
      “Q. You were invited to go? I’m sorry.
      “A. You got the driveway to go on the driveway because the driveway is one and I have no choice to go in and out of the driveway.
      “Q. And that’s because the people who owned the property on which the driveway was located let you do that. Correct?
      “A. No. It’s because it’s one driveway. We have the right to go.”