author: DUPONT, J.

text:
    KEEPER’S, INC. v. ATGCKG REALESTATE, LLC
    (AC 35022)
    Beach, Sheldon and Dupont, Js.

      Argued September 16
    officially released November 26, 2013

      Jonathan J. Klein, with whom, on the brief, were John R. Bryk and William J. Varese, for the appellant (plaintiff).

      Max S. Case, for the appellee (defendant).
   Opinion

DUPONT, J.

In this contract dispute involving the terms of an “Agreement and Addendum to Lease,” the plaintiff-tenant, Keeper’s, Inc., appeals from the summary judgment rendered in favor of the defendant-landlord, ATGCKG Realestate, LLC. The plaintiff claims that the defendant’s failure to sell the leased property to the plaintiff after the defendant had received an unsolicited offer from a third party to buy that property constituted a breach of that agreement, which had established the plaintiffs right of first refusal. The trial court rendered summary judgment in favor of the defendant on the ground that the right of first refusal never became operative because the defendant had no intent or desire to sell the leased premises. On appeal, the plaintiff asserts that the court erred in deciding that there were no genuine issues of material fact as to: (1) whether the plaintiffs right of first refusal would only become operative upon the defendant’s intent to sell the property; and (2) whether the plaintiffs right to purchase, as worded in the lease, constituted a right of first refusal or “a unique, custom-crafted right to purchase.” We conclude that the trial court properly determined that there was no genuine issue as to any material fact and that the defendant was entitled to judgment as a matter of law, and, thus, affirm the judgment of the trial court.

The resolution of the issues on appeal requires a brief review of the pleadings filed in this case and of the facts alleged in those pleadings. The plaintiff commenced the present action against the defendant on January 17, 2012, alleging breach of contract, and seeking monetary damages, attorney’s fees, and specific performance of a right of first refusal for the sale and purchase of the leased property. The premises are described in all relevant documents as “Unit 1 and 2, Milford Business Center, 354 Woodmont Road, Milford, Connecticut” (property). On or about February 1,1999, Anthony Gallo entered into a lease agreement for the property, as landlord, with 364 Woodmont Road, Inc., as tenant. The lease was thereafter amended on April 3,2003, in an Agreement and Addendum to Lease (amended lease).

Both the original lease and the amended lease included paragraph thirteen, which conferred upon the plaintiff what both parties refer to as a right of first refusal. Paragraph thirteen states in relevant part: “If, during the term of the lease, or any renewal or extension thereof, landlord receives a written, bona fide offer to purchase the premises, landlord shall provide tenant with a copy thereof. Tenant shall have ten (10) days after receipt thereof to notify landlord that it elects to purchase the premises under the same terms and conditions as set forth in said offer, including, but not limited to, price, time for closing, financing contingencies. ...”

On October 11, 2008, the defendant received an unsolicited written offer to purchase the property from Dean Moccia, an unrelated third party. The defendant rejected Moccia’s offer. On October 21, 2008, the plaintiff gave the defendant written notice of its intent to “exercise its right of first refusal” by purchasing the property on the same terms and conditions as set forth in Moccia’s offer. The defendant also refused to sell the property to the plaintiff. As a result, the plaintiff commenced the present action to compel specific performance by seeking to mandate the sale of the property to it, pursuant to its claimed “right of first refusal” under paragraph thirteen of the amended lease. Without filing an answer to the plaintiffs complaint, the defendant filed a motion for summary judgment, pursuant to Practice Book § 17-44, claiming that the right of first refusal in the amended lease could only be exercised after the defendant offered the property for sale. Because it had never offered to sell the property, the defendant argued that the right of first refusal had not been triggered, and that, therefore, it was not obligated to sell to the plaintiff. Following oral argument, the trial court granted the defendant’s motion for summary judgment on August 30, 2012, finding that no genuine issue of material fact existed as to whether the defendant had any intent or desire to sell the property. Without an intent or offer to sell the property, the court concluded that the right of first refusal had not become operative as a matter of law.

“Our standard of review is well established. Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. ... On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . Our review of the trial court’s decision to grant [a] . . . motion for summary judgment is plenary.” (Internal quotation marks omitted.) Bridgeport v. White Eagle’s Society of Brotherly Help, Inc., 140 Conn. App. 663, 667-68, 59 A.3d 859 (2013).

I

The plaintiff first argues that the court improperly determined that there was no genuine issue of material fact as to the effect of Moccia’s offer on the right of first refusal in the lease. In support of that argument, the plaintiff specifically contends that the court incorrectly decided that the plaintiffs right to purchase the property could only take effect if the defendant decided to sell that property. The plaintiffs claim is without merit.

In its complaint, the plaintiff sought specific performance of the terms of paragraph thirteen of the amended lease. Specifically, the plaintiff argued that “[u]nder the terms of Paragraph 13 of the Agreement and Addendum to Lease, the Plaintiff has a Right of First Refusal with respect to any offer to purchase the premises. . . .” The defendant argues that the right of first refusal can only become operative if the owner of the real estate has a desire or intent to sell, even if the owner has received a bona fide offer to purchase. Case law, as hereinafter discussed, establishes that a right of first refusal cannot become operative unless the owner intends to sell the real estate in question.

A “right of first refusal” has been defined and distinguished in many treatises and reported decisions. “A right of first refusal, or first right to buy, is not a true option but is a valuable prerogative. It limits the right of the owner to dispose freely of its property by compelling the owner to offer it first to the party who has the first right to buy. Nor may the owner accept an offer made by a third party.” 25 R. Lord, WiUiston on Contracts (4th Ed. 2002) § 67:85, p. 502. Throughout the trial court proceedings, both parties characterized paragraph thirteen of the amended lease as the plaintiffs right of first refusal. Although on appeal the plaintiff now contends that paragraph thirteen is not a right of first refusal at all but a “unique, custom-crafted right to purchase,” the plaintiff itself repeatedly referred to paragraph thirteen throughout trial court proceedings as a “Right of First Refusal,” including in the plaintiffs complaint, in its memorandum in opposition to summary judgment, and in its supporting affidavits. The court therefore determined, as a matter of law, that the plaintiffs rights, contained in paragraph thirteen of the lease, constituted a right of first refusal.

In its memorandum of decision, the court, treating paragraph thirteen as a right of first refusal, determined that because no genuine issue of material fact existed as to the defendant’s lack of a desire to sell, any right of first refusal in the lease had not become operative. The court stated that “[w]hile this matter concerns the interpretation of an in-artfully drawn right of first refusal, there is no issue of fact regarding whether the defendant intended to sell the disputed property.” (Footnote omitted.) The court concluded that “[s]ince it is undisputed that the defendant only received an offer on its property and did not display any desire or willingness to sell, as a matter of law, the right of first refusal is not operative.” We agree with the court.

The court’s emphasis on the defendant’s lack of a willingness to sell is well supported by our Supreme Court jurisprudence. In Tadros v. Middlebury Medical Center, Inc., 263 Conn. 235, 820 A.2d 230 (2003), the court stated that “[a] right of first refusal is known more technically as a preemptive option, as a right of preemption, or simply as a preemption. A right of [preemption] is a right to buy before or ahead of others; thus, a [preemptive] right contract is an agreement containing all the essential elements of a contract, the provisions of which give to the prospective purchaser the right to buy upon specified terms, but, and this is the important point, only if the seller decides to sell. It does not give the preemptioner the power to compel an unwilling owner to sell, and therefore is distinguishable from an ordinary option.” (Emphasis in original; internal quotation marks omitted.) Id., 240-41; see also Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 273-74 n.5, 709 A.2d 558 (1998) (“An option to purchase ordinarily grants the tenant an absolute right to purchase leased property. A right of first refusal, also known as a preemptive option, confers upon the tenant a preferential right of purchase if the landlord decides to sell the leased property. ... A right of [preemption] is a right to buy before or ahead of others . . . but . . . only if the seller decides to sell.” [Citation omitted; internal quotation marks omitted.]); 25 R. Lord, supra, § 67:85, pp. 503-504 (“[t]he ‘right of first refusal’ or ‘preemption’ is conditioned upon the willingness of the owner to sell; it can be enforced by specific performance where such willingness can be proved” [footnote omitted]). An owner’s intent to sell acts as a condition precedent to the plaintiffs right of first refusal. See 25 R. Lord, supra, § 67:85, p. 502 (distinguishing rights of first refusal and options: “an option must be accepted and then performed within the time limit specified, or if none is mentioned, then within a reasonable time, whereas a right of first refusal has no binding effect unless the offeror decides to sell”).

The court considered the pleadings, motions, and affidavits submitted by both parties and determined that there was no issue as to the material fact, namely, that the defendant did not intend to sell the property. On the basis of our extensive review of the same pleadings, motions, and affidavits, we agree with the court. Because a right of first refusal cannot be enforced without an intent or desire to sell, the defendant was entitled to summary judgment.

II

The plaintiff also argues, alternatively, the plaintiffs right to purchase the property, as worded in the amended lease, constituted a “unique, custom-crafted right to purchase.” Although the plaintiff repeatedly referred to paragraph thirteen as a right of first refusal throughout the trial court proceedings, it now asserts that paragraph thirteen is not a right of first refusal at all, but instead, an atypical right to purchase. As such, the plaintiff contends that the court should have evaluated the defendant’s motion for summary judgment in light of the actual language of paragraph thirteen and not as a traditional right of first refusal. We are not persuaded. It is the plaintiff, not the court, that characterized paragraph thirteen of the amended lease as granting the plaintiff a right of first refusal.

“In construing the terms of a lease, the court is required to give the document’s language its common and generally accepted, or plain and ordinary meaning, unless a technical or special meaning is clearly intended. ... If the language used in a lease is technical or constitutes terms of art, the general rule is that such language is to be given its common technical meaning . . . .” (Footnotes omitted.) 49 Am. Jur. 2d 92-93, Landlord and Tenant § 49 (2006). A phrase is a legal term of art if it has “acquired a peculiar and appropriate meaning in the law requiring it to be construed and understood accordingly. . . . Words with a fixed legal or judicially settled meaning must be presumed to have been used in that sense.” (Citation omitted; internal quotation marks omitted.) Patino v. Birken Mfg. Co., 304 Conn. 679, 689, 41 A.3d 1013 (2012); see also Black’s Law Dictionary (9th Ed.) (defining “term of art” as “[a] word or phrase having a specific, precise meaning in a given specialty”).

On the basis of the evidence before it, the court correctly determined as a matter of law that the relevant language in paragraph thirteen constituted a right of first refusal, albeit an “in-artfully drawn” one. As we addressed with respect to the plaintiffs first claim, what constitutes a “right of first refusal” has been well defined. Specifically, our Supreme Court has established that a right of first refusal, by its definition, is conditioned upon the owner’s willingness to sell. An owner’s intent to sell is a prerequisite to the operation of a right of first refusal. Accordingly, we conclude that the phrase “right of first refusal” as used by both parties in their pleadings and in the amended lease itself, constitutes a term of art with a fixed legal meaning, and that the court’s conclusion that the right of first refusal had not become operative because the defendant never intended to sell was legally correct. The specific language used in paragraph thirteen to allow the plaintiff to claim a “unique, custom-crafted right to purchase,” instead of a right of first refusal, does not alter this analysis. Without the defendant’s intent to sell, the plaintiff could not acquire a right to buy.

The judgment is affirmed.

In this opinion the other judges concurred.

      . ATGCKG Realestate, LLC, is the proper name of the defendant.

       The court treated the language of the lease as granting a right of first refusal but stated that the language was “in-artfully” drawn. Nothing in the record or the trial court’s memorandum of decision indicates that the “unsolicited” offer was rejected because the terms of the offer were not satisfactory. The court determined that the offer did not trigger the right of first refusal because the defendant had no desire to sell the leased property.

       The plaintiff also argues that the court erred in not finding that there were genuine issues of material fact as to whether the unsolicited offer to purchase the property was a bona fide offer as to price, terms of sale, and ability to perform. Because the defendant’s lack of an intent to sell acts as the dispositive factor in the present appeal, we need not address any issues arising from the bona fides of the offer.

       The plaintiff is successor in interest to the original tenant, 354 Woodmont Road, Inc., while the defendant is successor in interest to Gallo, the original landlord. Both Gallo and his wife are members of the defendant LLC.

       The parties agree that paragraph thirteen of the amended lease governs the current dispute. The plaintiff attached paragraph thirteen, as amended, to its complaint, claiming it to be the source of its right of first refusal. That provision in the amended lease is identical to paragraph thirteen in the original lease except that the amended lease adds sentences that relate to the possibility of a sale to a person or entity related to the lessor. See footnote 10 of this opinion.

       It is unclear from the record precisely how the plaintiff learned of Moc-cia’s offer. There is no dispute, however, that such an offer was in fact made. The plaintiff argues that the only condition precedent to its right of first refusal to purchase is that the unsolicited offer be bona fide.

       The fact that the defendant had not yet filed its answer to the plaintiffs complaint is of no consequence. Practice Book § 17-44 expressly provides that a motion for summary judgment may be filed “at any time . . . .”

       Although the record reflected some prior correspondence between the plaintiff and the defendant concerning a potential sale of the property to the plaintiff, those negotiations are not relevant to the current dispute because they occurred in 2006, two years before Moccia’s offer in October, 2008, and are not indicative of any intent to sell at the time of Moccia’s offer, or to sell to anyone other than the plaintiff.

       The court noted that the plaintiff claimed that the defendant’s receipt of an offer to purchase was enough to trigger the plaintiffs right of first refusal but that such a position was not legally supported.

       It is important to note that paragraph thirteen of the amended lease contains two additional sentences that were not quoted in the trial court’s memorandum of decision granting the defendant’s motion for summary judgment. The sentences were not included in the original lease, but were added by the Agreement and Addendum to the lease in 2003. The additional sentences of paragraph thirteen provide: “Notwithstanding the foregoing, the terms and provisions of this paragraph shall not apply to any sale or other conveyance of the premises to any of landlord’s family members (as hereinafter defined), trusts for their benefit and/or a corporation, partnership and/or limited liability company wherein the landlord or a family member has at least a fifty one (51%) percent ownership interest. The grantees of such a sale or other conveyance shall take subject to tenant’s right of first refusal for any subsequent sale or conveyance. Family members are defined as landlord’s spouse and/or issue.” (Emphasis added.) No evidence was proffered at the time of the defendant’s motion for summary judgment or in oral argument regarding that motion indicating that there had been any such sale or conveyance to a member of the defendant’s family, and therefore, this quoted provision of paragraph thirteen did not apply to the present facts. On appeal, however, the plaintiff argued that the term “right of first refusal” mentioned in the additional sentences of paragraph thirteen, also impliedly applied to the plaintiffs right of first refusal in the first portion of that same paragraph.

       Other jurisdictions also follow this same view. See New York Tile Wholesale Corp. v. Thomas Fatato Realty Corp., 13 App. Div. 3d 425, 427, 787 N.Y.S.2d 341 (2004) (“A right of first refusal, as distinguished from an option, does not give its holder the power to compel an unwilling owner to sell; it merely requires the owner, when and if he decides to sell, to offer the property first to the party holding the preemptive right so that he may meet a third-party offer or buy the property at some other price set by a previously stipulated method. . . . The right of first refusal is violated only when the landowner sells the property without first offering the optionee the right to match the purchase offer.” [Citations omitted; internal quotation marks omitted.]); see also Park-Lake Car Wash, Inc. v. Springer, 352 N.W.2d 409, 411 (Minn. 1984) (“The right-of-first-refusal provision in the lease is similar to an option contract. The difference is that the right of first refusal requires a condition precedent before it may be exercised. . . . The condition precedent is that the owner must have received a bona fide offer from a third party which he or she is willing to accept.” [Citation omitted.]).

       In relevant part, the plaintiff argues that “the trial court’s fixation on categorizing the Plaintiff’s right to purchase the [property] as a ‘right of first refusal’ led it to misplace its focus on the Defendant’s intentions regarding the sale of the [property], rather than on Moccia’s bona fides in offering to purchase it. The characterization of the Plaintiff’s perhaps atypical right to purchase, in and of itself raises genuine issues of material fact as to whether that right actually constituted a right of first refusal, an option, or something else unique. The complete disregard of these genuine issues of material fact is fatal to the summary judgment.”

       The plaintiffs argument that it was entitled to buy the premises if the offer to buy was bona fide is not determinative of the plaintiffs right to buy at the same price offered. An offer can be monetarily adequate, with the prospective buyer ready, willing and able to buy, without influencing or causing the owner to seE. For example, the owner could desire to keep the title to the property in the family for sentimental reasons, allowing future generations to enjoy it, or because the owner, even inexphcably, loved living or visiting there.


source: Caselaw Access Project

author: BEAR, J.

license: Public Domain

text:
    IN RE AVERIELLA P.

    (AC 35810)
    Alvord, Bear and Harper, Js.
    Argued October 15
    officially released November 13, 2013

      Dana M. Hrelic, with whom were Brendon P. Levesque and, on the brief, Lori Knuth, for the appellant (respondent mother).

      Susan T. Pearlman, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79a-12, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

       November 13, 2013, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

BEAR, J.

The respondent mother appeals from the judgment of the trial court transferring guardianship of her daughter, Averiella P., from the petitioner, the Commissioner of Children and Families, to the child’s maternal grandmother and maternal stepgrandfather (grandparents). On appeal, the respondent claims that the court used an improper standard, namely, potential risk of harm to the child, when determining whether it should grant the petitioner’s motion to transfer guardianship. We disagree with the respondent’s contention and, accordingly, affirm the judgment of the trial court.

Averiella has been in the legal custody of the petitioner since shortly after her birth in May, 2011, when the court entered an order of temporary custody in favor of the petitioner, who placed Averiella with her grandparents. Since that placement, Averiella has lived continuously with her grandparents for essentially her entire life. Initial specific steps were ordered for the respondent and Averiella’s father at the time of the temporary custody hearing. On September 8, 2011, the court adjudicated Averiella neglected after the respondent and Averiella’s father entered pleas of nolo conten-dere to the petitioner’s allegation of neglect, which had been based on the ground that Averiella was permitted to live under conditions, circumstances or associations injurious to her well-being. In the dispositional part of the neglect proceeding, the court committed Averiella to the petitioner, who was designated as her statutory guardian until further order of the court, and it ordered amended specific steps for the parents at that time. On December 7, 2012, the petitioner filed a motion to modify the disposition from commitment to a transfer of guardianship to the grandparents. On January 23,2013, the respondent filed an objection to the motion to modify disposition to a transfer of guardianship and a motion for reunification. The court held a hearing on May 22, 2013, and rendered a judgment on May 28, 2013, granting the petitioner’s motion and denying the respondent’s motion. This appeal followed.

On appeal, the respondent specifically claims: “The trial court improperly based the transfer of guardianship of the minor child to the maternal grandparents on the ‘potential risk of harm’ to the minor child stemming from prior injuries sustained over two years earlier by a different child.” She argues that “[t]he ‘potential risk of harm’ is an improper standard upon which to base a finding that a transfer of guardianship is in a child’s best interest,” and, alternatively, “[t]he ‘potential risk of harm’ alone was insufficient to support the trial court’s finding that a transfer of guardianship was in the child’s best interest.” We disagree with the respondent’s contentions.

“To determine whether a custodial placement is in the best interest of the child, the court uses its broad discretion to choose a place that will foster the child’s interest in sustained growth, development, well-being, and in the continuity and stability of its environment. . . . We have stated that when making the determination of what is in the best interest of the child, [t]he authority to exercise the judicial discretion under the circumstances revealed by the finding is not conferred upon this court, but upon the trial court, and ... we are not privileged to usurp that authority or to substitute ourselves for the trial court. ... A mere difference of opinion or judgment cannot justify our intervention. Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference. ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did. . . . [Gjreat weight is given to the judgment of the trial court because of [the court’s] opportunity to observe the parties and the evidence. . . . [Appellate courts] are not in a position to second-guess the opinions of witnesses, professional or otherwise, nor the observations and conclusions of the [trial court] when they are based on reliable evidence.” (Internal quotation marks omitted.) In re Anthony A., 112 Conn. App. 643, 653-54, 963 A.2d 1057 (2009); see General Statutes § 46b-129 (j); see also Practice Book § 35a-12A.

Practice Book § 35a-12A provides in relevant part: “(a) Motions to transfer guardianship are dispositional in nature, based on the prior adjudication.

“(b) In cases in which a motion for transfer of guardianship seeks to vest guardianship of a child or youth in any relative who is the licensed foster parent for such child or youth, or who is, pursuant to an order of the court, the temporary custodian of the child or youth at the time of the motion, the moving party has the burden of proof that the proposed guardian is suitable and worthy and that transfer of guardianship is in the best interests of the child. In such cases, there shall be a rebuttable presumption that the award of legal guardianship to that relative shall be in the best interests of the child or youth and that such relative is a suitable and worthy person to assume legal guardianship. The presumption may be rebutted by a preponderance of the evidence that an award of legal guardianship to such relative would not be in the child’s or youth’s best interests and such relative is not a suitable and worthy person. ...”

In the present case, the respondent focuses on the court’s statement during the hearing that “[t]he issue for the parents here [is] the unexplained injuries to [the other child]. Understand that the law permits adjudication of neglect based on a potential risk of harm, not just actual harm . . . .” Although the respondent is correct that the court made such a statement regarding the basis for the adjudication of neglect, “[mjotions to transfer guardianship are dispositional in nature, based on the prior adjudication.” Practice Book § 35a-12A (a). Furthermore, even if the court considered the potential risk of harm to Averiella as one of the important factors in its determination of her best interest, because it concerned her safety and well-being, the court did not err in doing so. See, e.g., General Statutes § 46b-129 (b) (child’s best interest includes his or her safety); In re Shyina B., 58 Conn. App. 159, 167, 752 A.2d 1139 (2000) (child’s best interest includes her interest in sustained growth, development, well-being, and continuity and stability of her environment).

In this case, the court also very clearly stated that “while the interests of all others may be considered in making a decision about the child, it is the best interest of the child that controls the decision.” The court found that Averiella had lived with her grandparents since shortly after she was bom, that she “has thrived in that environment” and that the grandparents were “open to visits with the parents.” The court also stated that it had “reviewed the evidence submitted by all counsel and listened to the testimony presented at [the] hearing . . . It concluded by finding that “the transfer of guardianship to [the grandparents] is in the best interest of Averiella . . . [and that the grandparents] are suitable and worthy caretakers.” As our Supreme Court previously has stated: “[I]f it is not otherwise clear from the record that an improper standard was applied, the appellant’s claim will fail on the basis of inadequate support in the record.” (Internal quotation marks omitted.) In re Jason R., 306 Conn. 438, 453, 51 A.3d 334 (2012). In this case, there is no support in the record for the respondent’s contention that the court used “potential risk of harm” as the sole basis for its finding that a transfer of guardianship was in Averiella’s best interest.

We conclude, therefore, that the court properly applied the standard required by Practice Book § 35a-12A and General Statutes § 46b-129 (j).

The judgment is affirmed.

In this opinion the other judges concurred.

       The respondent father has not joined in this appeal. Accordingly, we refer to the mother as the respondent.

       Counsel for Averiella filed a position letter with this court, stating that she supports the position of the petitioner on appeal.

       The grandparents are licensed foster care providers.

       The respondent has appealed only from the judgment granting the petitioner’s motion to open and transfer guardianship. She has not appealed from the court’s denial of her motion for reunification.

       Additionally, the respondent did not offer proof sufficient to overcome by a preponderance of the evidence the rebuttable presumption that the award of legal guardianship to the grandparents was in the best interests of Averiella and that they were suitable and worthy persons to assume legal guardianship. See Practice Book § 36a-12A (b).

       Following the release of our opinion, the respondent filed, inter alia, a motion for reconsideration contending in relevant part that Practice Book § 35a-12A was not applicable to this case, but that Practice Book § 35a-16 applied. We have reconsidered our ruling and determined that the outcome of this appeal would be the same under either Practice Book section.
      Practice Book § 35a-12A became effective on January 1, 2012, and, originally, was recommended to the Child Protection Subcommittee of the Juvenile Task Force as a new Practice Book § 35a-16A. See Minutes, Meeting of Child Protection Subcommittee of the Juvenile Task Force (September 27, 2010), available at http://jud.ct.gov/Committees/juv/juv_minutes_CP_092710.pdf Oast visited December 16, 2013). Instead, the subcommittee decided to move the recommended provision to § 35a-12A. Id. Motions under both §§ 35a-12A and 35a-16 are “dispositional in nature,” based on the prior adjudication. See Practice Book §§ 35a-12A (a) and 35a-16.
      Practice Book § 35a-16 concerns motions to modify dispositions, including by way of a transfer of guardianship, and § 35a-12A concerns motions to transfer guardianship. In the child protection context, however, after a child has been committed to the custody and guardianship of the commissioner, as in this case, the court could not transfer guardianship from the commissioner to a third party without modifying the original disposition. Because we conclude in this case that the outcome of the appeal would be the same under either provision, we need not analyze at this time the exact interplay between these two sections of the rules of practice. There is no doubt that General Statutes § 46b-129 (j) governed this case, and we already have concluded that the court properly applied that statute.


author: KELLER, J.

text:
    ADRIAN STROUD v. MID-TOWN TIRE AND SUPPLY, INC., ET AL.
    (AC 34946)
    Lavine, Keller and Mihalalcos, Js.

      Argued September 17
    officially released December 3, 2013

      Stephen F. McEleney, with whom, on the brief, was Emily A. Peterson, for the appellant (plaintiff).

      Nicholas N. Ouellette, with whom were Matthew Dallas Gordon and, on the brief, Ruth A. Kurien, for the appellee (defendant Dennis Distefano).
   Opinion

KELLER, J.

The plaintiff, Adrian Stroud, appeals from the judgment of the trial court dismissing count three of his complaint, which was brought against the defendant Dennis Distefano. The plaintiff claims that the court improperly granted the defendant’s motion to dismiss. We affirm the judgment of the trial court.

In his complaint, the plaintiff alleged that, at times relevant, Mid-Town Tire & Supply, Inc. (Mid-Town), was in the business of providing towing and related moving services. On March 24, 2008, the Middletown Board of Education (board) employed Mid-Town to move a storage container located on the premises of Middletown High School, which is located on Huntingh-ill Avenue in Middletown (city). In furtherance of this task, employees, agents or servants of Mid-Town, namely, John DeCrosta, Lawrence Juczak and Michael Rosevear, positioned a tow truck on the east side of Huntinghill Avenue, facing south. They stretched a winch cable from the tow truck, across the width of Huntinghill Avenue, to the storage container positioned near the western side of the road.

The plaintiff alleged that, at times relevant, he was a Middletown police officer acting in the performance of his police duties. On the morning of March 24, 2008, he was assigned to a traffic post in the vicinity of MidTown’s job site on Huntinghill Avenue and, between 11 and 11:30 a.m., he proceeded in his police cruiser, in a southerly direction on Huntinghill Avenue, to that location. By the time that he reached the location of the storage container, Mid-Town’s workers were in the process of moving it. The plaintiff, unaware that the winch cable was running across his lane of travel, violently collided with the cable “which was obstructing Huntinghill Avenue.” The plaintiff alleged that MidTown and its workers were negligent in a number of ways and that such negligence caused him injury.

In count three of his complaint, which incorporated by reference the other two counts of the complaint, the plaintiff alleged that, at times relevant, the defendant “was an employee of the Board of Education of the City of Middletown and was acting in the scope of that employment.” Additionally, the plaintiff alleged: “The aforesaid collision between the police cruiser and the winch cable was the direct and proximate result of the contributory negligence and carelessness of [the defendant] in that he may have told one of the remaining defendants in this action to proceed with the moving of the storage container by a winch cable stretched across Huntinghill Avenue even though he knew, or should have known, said action should not have taken place until the [p]laintiff . . . was safely positioned at the traffic post to which he was assigned.”

The defendant filed a motion to dismiss the third count of the plaintiffs complaint on the ground that the allegations set forth therein amounted to “a cause of action against a municipality or its employees for injuries attributable to a defective roadway . . . .” The defendant argued that pursuant to General Statutes § 52-557n, the plaintiffs exclusive remedy was to bring a claim pursuant to the municipal highway defect statute, General Statutes § 13a-149. The defendant asserted that insofar as the plaintiff did not satisfy the notice requirements of § 13a-149, he did not properly bring a claim pursuant to that statute and, thus, his claim should be dismissed for lack of subject matter jurisdiction.

In opposing the defendant’s motion, the plaintiff asserted that his cause of action sounded in negligence. He argued that the action could not properly have been brought pursuant to § 13a-149 because he brought the action against the defendant, an employee of the board, which was not responsible for the maintenance of the roadways in the city, rather than against the city itself. Additionally, the plaintiff asserted that “[tjhere is and will be a factual dispute that at the time of the accident, Huntinghill Avenue was closed.” (Emphasis in original.) On this ground, the plaintiff argued, Huntinghill Avenue was not a roadway within the purview of § 13a-149.

In reply, the defendant asserted that insofar as the complaint alleged that, at times relevant, he “was an employee of the Board of Education of the City of Middletown and was acting in the scope of that employment,” he also was an employee of the city, and the city was obligated to keep the road in repair. Further, the defendant argues that the claim that he negligently caused physical injury in the performance of his duties effectively imposes liability on the municipality employing him, because, under the circumstances present, General Statutes § 7-466 (a) would obligate the city to indemnify the defendant for his negligent acts. The defendant asserted that the plaintiffs unsubstantiated assumption that Huntinghill Avenue was closed at the time of the accident belied the facts alleged in the complaint as well as the facts implied from those allegations. Specifically, the defendant argued that the complaint reflects that the plaintiff arrived on the scene for the purpose of closing Huntinghill Avenue to public travel, but that it was not closed at the time of the accident at issue.

The court held a hearing with regard to the motion to dismiss. Thereafter, the court issued a memorandum of decision in which it granted the defendant’s motion to dismiss. The court agreed with the defendant that the plaintiff failed to bring his claim pursuant to § 13a-149, his exclusive remedy. The court concluded that the condition at issue in the plaintiffs complaint, namely, a winch cable stretched across the travel lanes of Huntin-ghill Avenue, clearly brought the claim within the purview of the municipal highway defect statute. Further, the court concluded that, pursuant to § 7-465 (a), the defendant was an employee of the city and that, if the count were to proceed, the city ultimately would be hable for his negligent acts. This appeal followed.

“The standard of review for a court’s decision on a motion to dismiss [under Practice Book § 10-31 (a) (1)] is weh settled. A motion to dismiss tests, inter aha, whether, on the face of the record, the court is without jurisdiction. . . . [0]ur review of the court’s ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo. . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable hght. ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone. ... In undertaking this review, we are mindful of the well established notion that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.” (Citations omitted; internal quotation marks omitted.) Dayner v. Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d 1192 (2011).

Section 52-557n (a) (1) provides in relevant part: “Except as otherwise provided by law, apolitical subdivision of the state shall be hable for damages to person or property caused by . . . [t]he negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties . . . provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149.”

Section 13a-149 provides in relevant part: “Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. No action for any such injury sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury. No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation. . . .”

“A town is not liable for highway defects unless made so by statute. . . . Section 13a-149 affords a right of recovery against municipalities. . . . We have construed § 52-557n ... to provide that, in an action against a municipality for damages resulting from a highway defect, the defective highway statute is the plaintiffs exclusive remedy. ... In addition, because § 7-465 (a) requires a municipality to indemnify its officers for their negligent acts, § 52-557n also bars a joint action seeking damages against a municipality and its officer for damages resulting from a highway defect.” (Citations omitted; internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 341, 766 A.2d 400 (2001). “[B]ecause municipal liability under § 13a-149 is predicated exclusively on the town’s failure to carry out its statutory duty [to keep its roads in repair], it follows that the manner in which a defect is created in and of itself has no bearing on the town’s liability under the statute. Rather, it is the existence of the defect and the town’s actual or constructive knowledge of and failure to remedy that defect that are of primary importance in making out a prima facie case of municipal liability under § 13a-149.” (Emphasis in original.) Machado v. Hartford, 292 Conn. 364, 377-78, 972 A.2d 724 (2009).

“We have held that a highway defect is [a]ny object in, upon, or near the traveled path, which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon, or which, from its nature and position, would be likely to produce that result . . . .” (Internal quotation marks omitted.) McIntosh v. Sullivan, 274 Conn. 262, 268-69, 875 A.2d 459 (2005). On appeal, it is not claimed that the alleged obstruction of Huntinghill Avenue by means of the winch cable did not constitute a defect in the path of travel which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon. All of the plaintiffs alleged injuries were sustained as a result of his collision with this defect.

First, the plaintiff urges us to conclude that his claim did not fall under the purview of the municipal highway defect statute because he did not bring his claim against the city, the entity that statutorily was obligated to keep the road in repair. He argues that he merely alleged that the defendant was an employee of the board, not an employee of the city, and the board was not bound to keep Huntinghill Avenue in repair.

We acknowledge the plaintiffs argument that there is a distinction between the city and its board of education, and that, in certain contexts, the distinction between the city and the board is significant. Nonetheless, for purposes of the present inquiry concerning the highway defect statute, the allegations of the plaintiffs complaint, which we must accept as true in evaluating the plaintiffs claim, establish that the defendant was acting as an employee of the city during the events at issue. Although the plaintiff disavows the notion that he brought a claim against the city, he unambiguously alleged that the defendant’s negligent conduct occurred while the defendant “was an employee of the Board of Education of the City of Middletown and was acting in the scope of that employment.” The plaintiff alleged that the defendant may have taken direct action to create the defective condition at issue in that he may have directed others to proceed with the moving of the storage container by means of the winch cable. It is well settled that “ ‘members of a local board of education are officers of the town they serve and that the persons employed by them in the performance of their statutory functions are employees of the town.’ ” Board of Education v. State Employees Retirement Commission, 210 Conn. 531, 545, 556 A.2d 572 (1989), quoting Cheshire v. McKenney, 182 Conn. 253, 259-60, 438 A.2d 88 (1980). The implication of the plaintiffs complaint is that by the defendant’s alleged involvement in the activities concerning the storage container, the defendant was not engaged in a personal frolic but was acting in the performance of a statutory function on behalf of his employer. Accordingly, for purposes of the present action, the plaintiff has brought a highway defect claim against an employee of the municipality charged with keeping the roadway in repair.

Second, the plaintiff argues that the trial court improperly relied on § 7-465 because he did not file a notice with the city under that provision and, insofar as the defendant was not acting in the performance of a duty to maintain the road at issue, the defendant was not “an employee” under that provision. Section 7-465 (a) provides in relevant part: “Any town, city or borough . . . shall pay on behalf of any employee of such municipality ... all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for . . . physical damages to person or property ... if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damages was not the result of any wilful or wanton act of such employee in the discharge of such duty. ... No action for personal physical injuries or damages to real or personal property shall be maintained against such municipality and employee jointly unless such action is commenced within two years after the cause of action therefor arose and written notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained has been filed with the clerk of such municipality within six months after such cause of action has accrued. ... As used in this section, ‘employee’ includes ... a member of a town board of education and any teacher ... or other person employed by such board . . . .”

The court did not state that the plaintiff had relied on § 7-465, and it is of no consequence to our analysis that the plaintiff, who does not appear to have manifested an intention to bring a claim against the city and the defendant jointly, has not filed a notice with the city clerk pursuant to that statute. The court observed that, if the plaintiffs claim were allowed to stand, it would “circumvent the intended exclusivity of § 13a-149” because § 7-466 requires the city to indemnify its employees for their negligent acts. Likewise, the plaintiffs argument that there is no allegation that the defendant was acting within the scope of a clearly delineated duty on his part to keep Huntinghill Avenue in repair is not persuasive. The plaintiff has alleged facts sufficient to implicate § 7-465 insofar as he has alleged facts sufficient to demonstrate that the defendant was employed by the city and the negligent acts complained of were for “physical damages to person or property” and occurred while the defendant was acting in the scope of his employment. The court properly observed that such a claim against a municipal employee in his individual capacity was improper. Indeed, our Supreme Court has recognized that claims of such a nature, circumventing § 13a-149, “serve as a veiled attempt to impose liability on the municipality.” Ferreira v. Pringle, supra, 255 Conn. 344. Moreover, that court has held that “a town may not be held liable for damages caused by highway defects under § 7-465 (a), since this would allow a plaintiff to circumvent the requirements of § 13a-149 by suing a municipal employee and seeking indemnification from the town.” Pratt v. Old Saybrook, 225 Conn. 177, 180, 621 A.2d 1322 (1993); see also Steele v. Stonington, 225 Conn. 217, 622 A.2d 551 (1993) (plaintiff may not seek indemnification from municipality under § 7-465 by circumventing requirements of § 13a-149 and characterizing § 13a-149 claim as one sounding in negligence).

Lastly, the plaintiff argues that the court erred by “ignoring” a disputed issue of fact, namely, whether Huntinghill Avenue was closed at the time of the accident. The plaintiff notes, correctly, that one cannot sustain an action under § 13a-149 without a showing that the road at issue was an open, public road. See, e.g., Read v. Plymouth, 110 Conn. App. 657, 664-65, 955 A.2d 1255, cert. denied, 289 Conn. 955, 961 A.2d 421 (2008). The court’s memorandum of decision is silent with respect to this issue which, as it appears from the submissions of the parties before the trial court, was raised in the context of the defendant’s motion to dismiss. Thus, the record does not support the plaintiffs contention that the court ignored the issue, but simply that it did not address it.

In any event, the plaintiffs argument is not compelling because there is nothing in the pleadings, the facts reasonably implied from the pleadings and the existing record to give rise to an issue as to whether Huntinghill Avenue was open to public travel at the time of the accident. For example, the plaintiff alleged merely that he proceeded to the location of the accident in his police cruiser and that Mid-Town and the other defendants acted negligently insofar as they failed to take any measures “to warn any oncoming vehicle of the presence of the cable in the travel portion of the roadway” and “by failing to assure that Huntinghill Avenue was completely secured from any and all motor vehicle traffic prior to raising the cable across the width of Huntinghill Avenue.” These allegations do not, as a matter of law, reflect that the plaintiffs claim did not fall within the purview of § 13a-149.

We must read the complaint “broadly and realistically.” (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 536, 51 A.3d 367 (2012). The allegations of the plaintiffs complaint invoke §§ 52-557n (a) (1) and 13a-149 insofar as they allege the existence of a highway defect that arose because of the negligent conduct of a municipal employee who was acting within the scope of his employment with the municipality. See Ferreira v. Pringle, supra, 225 Conn. 353-54; Priore v. Longo-McLean, 143 Conn. App. 249, 257-58, 70 A.3d 147 (2013) (allegation that municipal road was unsafe for public travel because of municipal project that affected safety of road “sufficient to satisfy the pleading requirements of [§ 13a-149], .regardless of whether [claims were brought pursuant to that statute]”)- “Even if a plaintiff does not plead § 13a-149 as a means for recovery, if the allegations in the complaint and any affidavits or other uncontroverted evidence necessarily invoke the defective highway statute, the plaintiffs exclusive remedy is § 13a-149. If § 13a-149 applies, the plaintiff must comply with the notice provisions set forth therein in order for the trial court to have subject matter jurisdiction.” Bellman v. West Hartford, 96 Conn. App. 387, 393-94, 900 A.2d 82 (2006). The plaintiffs claim is premised on the existence of a highway defect. Because § 13a-149 is the exclusive remedy for such a claim, the court properly dismissed the defendant’s claim against the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       This appeal arises from two civil actions that were consolidated by the trial court. In the first action, the plaintiff brought claims sounding in negligence against the named defendant, Mid-Town Tire & Supply, Inc., as well as defendants Lawrence Juczak, Michael Rosevear, John DeCrosta and Dennis Distefano. In the second action, the City of Middletown brought claims against Mid-Town Tire & Supply, Inc., seeking, among other damages, the reimbursement of workers’ compensationpayments made to the plaintiff. See footnote 2 of this opinion. For purposes of the present appeal, we refer to Adrian Stroud as the plaintiff and to Dennis Distefano as the defendant.

       The court granted the motion of the City of Middletown to intervene in the plaintiff’s action on the ground that it had a right of reimbursement for sums paid to the plaintiff in the form of workers’ compensation benefits.

       The defendant submitted an affidavit from Sandra Russo-Driska, the town clerk for the City of Middletown, in which she averred, in relevant part, that the city “is responsible for and charged with the maintenance and repair of Huntinghill Avenue located in Middletown, Connecticut” and that the city’s business records did not reflect that the plaintiff provided notice to the city of his injuries resulting from the events of March 24, 2008, on Huntinghill Avenue. Before the trial court, these averments were not challenged by the plaintiff. Likewise, before this court, the plaintiff has acknowledged that the city was responsible for maintaining Huntinghill Avenue and that he did not provide notice to the city pursuant to § 13a-149.

       The uncontested facts before the court reflect that the city controlled Huntinghill Avenue and that it had the ultimate responsibility of keeping it in repair. See footnote 3 of this opinion.

       “[I]t bears emphasis that the issue of whether an employee of a municipal board is also an employee of the municipality served by the board has arisen only in the context of boards of education. That the issue has arisen at all stems from the fact that our jurisprudence has created a dichotomy in which local boards of education are agents of the state for some purposes and agents of the municipality for others. . . .
      “Thus, on those few occasions when we have considered the issue, it has been in connection with an effort—either by the employee of a board of education or by a board of education itself—to exploit this dichotomy to some advantage by claiming that board of education employees are employees of the board alone rather than the municipality served by the board. ... We rejected this claim in each of the foregoing cases, concluding that the board’s dual agency in no way undercut the employer-employee relationship between the municipality and the board’s employees.” (Citations omitted; internal quotation marks omitted.) Rettig v. Woodbridge, 304 Conn. 462, 478-79, 41 A.3d 267 (2012).

       Thus, the present case may be distinguished on its facts from Kumah v. Brown, 307 Conn. 620, 58 A.3d 247 (2012), on which the plaintiff relies. In Kumah, our Supreme Court held that a nuisance claim brought against a municipality did not fall within the ambit of § 13a-149 when the plaintiffs had alleged that the nuisance at issue was created by the municipality on a state highway that the municipality was not legally responsible for maintaining. Id., 633-34. Likewise, the plaintiffs reliance on Novicki v. New Haven, 47 Conn. App. 734, 709 A.2d 2 (1998), is unavailing. In Novicki, this court upheld the judgment dismissing the plaintiffs complaint against the City of New Haven on the ground that the complaint did not fall within the ambit of § 13a-149 because there was uncontroverted evidence that the New Haven Board of Education, and not the City of New Haven, was the entity bound to repair the road on which the plaintiffs injuries allegedly occurred. Id., 741-42. In the present case, it is uncontroverted that the city was obligated to maintain the road on which the plaintiff allegedly sustained injury. See footnote 3 of this opinion.

       Additionally, we observe that insofar as the plaintiff has received workers’ compensation benefits from the city for his injuries sustained while on duty as a police officer employed by the city, his attempt to bring a cause of action against the defendant by which he could obtain payment from the city runs afoul of the exclusivity provision of the Workers’ Compensation Act (act), General Statutes § 31-275 et seq. “The purpose of the [act] . . . is to provide compensation for injuries arising out of and in the course of employment, regardless of fault. . . . Under the [act], the employee surrenders his right to bring a common law action against the employer, thereby limiting the employer’s liability to the statutory amount. ... In return, the employee is compensated for his or her losses without having to prove liability. ... In a word, [the act] compromise [s] an employee’s right to a common law tort action for work related injuries in return for relatively quick and certain compensation. . . . The intention of the framers of the act was to establish a speedy, effective and inexpensive method for determining claims for compensation.” (Citations omitted; emphasis omitted; internal quotation marks omitted.) Doe v. Yale University, 252 Conn. 641, 672, 748 A.2d 834 (2000).


author: HARPER, J.

text:
    STATE OF CONNECTICUT v. ENRIQUE F.

    (AC 34153)
    Sheldon, Keller and Harper, Js.
    Argued September 11
    officially released December 3, 2013

      Robert E. Byron, assigned counsel, for the appellant (defendant).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were Stephen J. Sedensky III, state’s attorney, and Sharmese L. Hodge, assistant state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of the victims of the crime of risk of injury to a child, we decline to use the defendant’s full name or to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

   Opinion

HARPER, J.

The defendant, Enrique F., appeals from the judgment of conviction, rendered after a jury trial, on two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (1) and (2). On appeal, the defendant claims that the trial court erred in granting the state’s motion to amend the long form information to conform to the testimony of the victim, and that he was deprived of a fair trial because of prosecutorial impropriety. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In 2008, the victim, S, moved into a new house with her mother, E, and the defendant. S testified that the defendant began to engage in inappropriate conduct with her shortly after they moved into the new home in 2008. She testified that multiple times each week the defendant would touch her breasts, buttocks, and vagina, both over and under her clothing. The defendant instructed S not to report this conduct because it would break up the family.

S specifically testified that the defendant “touched” her from the summer of 2009 throughout her seventh grade school year, and during the summer of 2010. She stated that any abuse would take place while E was at church, which was several times per week. On Sundays, E would leave early in the morning to go to church, and on Wednesdays she would be there until nine at night. At these times, the defendant was the only adult at home with S.

S also described the defendant’s general behavior in the house. S testified that the defendant would walk into her room unannounced when she was getting dressed after a shower. The defendant “would just come in the room, without knocking, and open the door and just stare at me . . . then, after, like, a few moments, he would leave.” The defendant would also randomly “slap” S on her buttocks. The defendant characterized the slapping as “a game” the family played, but S testified that the slapping made her uncomfortable and that she told the defendant to stop. O, S’s grandmother, witnessed the defendant slapping S’s buttocks and entering her room unannounced. Although this behavior was common in the household generally, S testified that it specifically occurred during January through May, 2010, while she was in the seventh grade. S began to complain that she wanted to five with O.

Upon O’s request, the family’s pastor met with O, E, the defendant, and S on August 10, 2010, to discuss why S wanted to move out of her house. At the meeting, S alleged that the defendant was sexually assaulting her. O immediately contacted the police, despite the fact that the defendant denied the allegations and pleaded with the family not to call the authorities. The police responded, learned that S had accused the defendant of sexual assault, and the Department of Children and Famihes (department) directed the responding officers to send S home with O. The defendant was arrested on August 11, 2010, and S remained in the custody of O.

The defendant was tried on one count of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), and two counts of risk of injury to a child in violation of § 63-21 (a) (1) and (2). The jury found the defendant guilty on both counts of risk of injury to a child but acquitted him of sexual assault. Additional facts will be set forth as necessary.

I

The defendant first claims that the court erred in allowing the state to amend the long form information and expand the time of the alleged offenses by six months in order to conform to S’s testimony. We disagree.

The following additional facts are necessary to resolve this claim. When the trial commenced, the operative long form information charged that “in or around Januaiy-June 2010,” the defendant committed the offenses of risk of injury to a child in violation of § 53-21 (a) (1) and (2). On October 13, 2011, three days into trial, the state moved to amend the long form information to read that the conduct occurred “in or around August 2009-August 2010,” so that the information would conform to S’s testimony that the conduct in question occurred while she was in the seventh grade. On appeal, the defendant claims: (1) the state did not have good cause for the amendment because “bare assertions” that a change is needed to conform the information to the evidence are insufficient; and (2) the defendant’s substantive right to notice was prejudiced because, according to the defendant, he had “no notice of any charges that might be claimed against him for the period August, 2009, to December, 2009.” (Emphasis in original.)

Our standard of review and the requirements for amending the information are well established. “On appeal, our [standard of review] of the court’s decision to permit an amendment to the information is one of abuse of discretion. . . . Before a trial begins, the state has broad authority to amend an information .... Once the trial has started, however, the prosecutor is constrained by the provisions of Practice Book § 36-18. ... If the state seeks to amend charges after the commencement of trial, it shoulders the burden of establishing that no substantive rights of the defendant would be prejudiced. . . . Like any other party petitioning the court, the state must demonstrate the basis for its request. Under [Practice Book § 36-18], the state must show: (1) good cause for the amendment; (2) that no additional or different offense is charged; and (3) that no substantive right of the defendant will be prejudiced.” (Citations omitted; internal quotation marks omitted.) State v. Mullien, 140 Conn. App. 299, 311, 58 A.3d 383 (2013). The defendant does not allege that the amended information charged an additional or different offense, and therefore the only issues are whether the state had good cause to amend the information and whether he suffered prejudice.

A

To show good cause to amend, the state must articulate a reason why the amendment is required, beyond a “bare assertion that it is merely conforming the charge to the evidence.” State v. Jordan, 132 Conn. App. 817, 825, 33 A.3d 307, cert. denied, 304 Conn. 909, 39 A.3d 1119 (2012). The testimony of minor victims, however, requires special consideration, and we have allowed the state to amend the time frame in the information in light of a minor victim’s testimony at trial. State v. Mullien, supra, 140 Conn. App. 312-13; Stale v. Grant, 83 Conn. App. 90, 100-101, 848 A.2d 549, cert. denied, 270 Conn. 913, 853 A.2d 529 (2004); State v. Wilson F., 77 Conn. App. 405, 413, 823 A.2d 406, cert. denied, 265 Conn. 905, 831 A.2d 254 (2003). In these cases, “the age of the [victim] at the time of the incidents, his age at the time of trial and his testimony concerning the dates at trial” amounted to good cause to amend the time frame in the information to conform to the testimony. State v. Wilson F., supra, 413.

Here, the state argued at trial that S’s testimony “came in differently” than anticipated because the state had expected that S would be able to “narrow [the alleged conduct] down to a six month window and [was] unable to . . . .” We conclude that the state’s unexpected difficulty in establishing a narrower time frame through the testimony of the minor victim constituted good cause to amend the information. See State v. Mullien, supra, 140 Conn. App. 312-13.

B

The defendant also argues that his substantive rights were prejudiced by the amendment of the information because he was deprived of “true notice” of “a six month window of liability three days into trial.” “[An] improper amendment of the information implicates the defendant’s constitutional right to fair notice of the charges against him.” State v. Jordan, supra, 132 Conn. App. 826. At trial, the state has the burden of proving that amending the information does not prejudice the defendant’s substantive rights. Id. On appeal, however, the defendant bears the burden of making a “specific showing of prejudice in order to establish that he was denied the right of due process of law.” (Internal quotation marks omitted.) Id.; see also State v. Wilson F., supra, 77 Conn. App. 413 n.6. In the prejudice analysis, “the decisive question is whether the defendant was informed of the charges with sufficient precision to be able to prepare an adequate defense.” (Internal quotation marks omitted.) State v. Mullien, supra, 140 Conn. App. 313; see also State v. Tanzella, 226 Conn. 601, 608, 628 A.2d 973 (1993). If the defendant has not asserted an alibi defense and time is not an element of the crime, then there is no prejudice when the state amends the information “to amplify or to correct the time of the commission of the offense . . . .” (Internal quotation marks omitted.) State v. Grant, supra, 83 Conn. App. 101. Ultimately, if the amendment has no effect on the defendant’s asserted defense, there is no prejudice. State v. Tanzella, supra, 616 (amendment’s effect “logically distinct” from defense asserted); State v. Jordan, supra, 826-27.

We conclude that the defendant sustained no prejudice because his admissions at trial made any amendment to the time frame irrelevant, and the defenses that were raised were “logically distinct” from the amendment to the information. For the two counts of risk of injury to a child, the state had the burden of proving: (1) the defendant placed S in a situation or did any act where her health, life, or morals were likely to be injured (situational count); and (2) the defendant had contact with S’s intimate parts or subjected S to contact with his intimate parts (intimate contact count). General Statutes § 53-21 (a) (1) and (2). The amendment to the information had no effect on defending against either of these charges.

The following facts are necessary to resolve this claim. At trial, the defendant admitted the following allegations in relation to the situational count: (1) he repeatedly “slapped” S’s buttocks; (2) he entered S’s room unannounced while she was in a state of undress; and (3) he disciplined her with a belt. The defendant argued that this behavior did not amount to risk of injury to a child, without asserting more. With respect to the intimate contact count, the state alleged that the defendant touched S’s breasts, buttocks, and vagina, over and under her clothes. In his defense, the defendant highlighted inconsistencies in S’s story and weaknesses in the state’s case. He argued ultimately that S had fabricated the allegations in an effort to be removed from the home and placed with O.

Expanding the time frame in the information by six months did not have any effect on the defendant’s conviction of risk of injury to a child, based on the defendant’s admissions and the defenses asserted. The defendant admitted many of the allegations that the jury reasonably could have used as the bases for a finding of guilt on the situational count. Furthermore, S testified that all of the conduct the defendant admitted to, except the discipline with the belt, was behavior that occurred constantly, including during her seventh grade school year and summer, which the time frame in the original long form information encompassed. In fight of the defendant’s admissions, expanding the time frame in the information could not have resulted in any prejudice. The defendant’s defense to the intimate contact count was centered on attacking S’s credibility. This defense is “logically distinct” from the amendment because a change in the time frame of the allegations does not impair a defendant’s ability to call into question S’s credibility. See State v. Victor C., 145 Conn. App. 54, 67, 75 A.3d 48 (2013).

In light of the defendant’s admissions and defenses, notice of the additional six month period had no bearing on his ability to prepare an adequate defense. Accordingly, we conclude that there was no prejudice and that the trial court did not err in granting permission to amend the information.

II

The defendant also argues that prosecutorial impropriety throughout the trial deprived him of his right to due process. We find no such impropriety.

The defendant argues that the state intentionally inserted repeated references to suicide into the trial with the purpose of inflaming the passions of the jury. The following additional facts are necessary to resolve this claim. The first reference to suicide came from S herself, without objection. During her direct examination, S stated that she went to the hospital because “I wanted to kill myself . . . [bjecause I was hurt too much ... I was destroyed [by] what he did to me that, like, no guy would want a girl like that. So, I ended up in the hospital.” The second reference came from an employee of the department, who stated that she visited S’s residence to perform “crisis intervention,” which occurs when a child is “making suicidal ideations . . . .” The defendant objected, and the response was stricken from the record.

The third reference to suicide occurred during the direct examination of Christiane Kubit, a psychiatrist who examined S. The defendant requested an offer of proof because the state intended to introduce through Dr. Kubit information regarding suicidal ideations. The court concluded that “the idea of the suicidal ideations ... is separate from the psychological aspects [of the effects from sexual assaults]. . . . [T]he doctor can testify to the fact that [S was] admitted for psychiatric treatment . . . [b]ut, I don’t think that . . . saying there’s suicidal ideations becomes all that relevant . . . .” Shortly after the court’s ruling, the jury entered the courtroom and the following colloquy took place:

“[The Prosecutor]: And, do you recall treating a child by the name of [S]?
“[Dr. Kubit]: Yes.
“[The Prosecutor]: Can you tell me about that?
“[Dr. Kubit]: She was admitted to the inpatient unit
“[The Prosecutor]: And what was she admitted for?
“[Dr. Kubit]: She was admitted for suicidal ideation.”

The defendant objected, the state quickly offered to strike the response, and the response was stricken with a curative instruction given to the jury to ignore the witness’ answer. Thereafter, the defendant’s motion for a mistrial was denied.

The final reference to suicide came during the state’s closing argument, when the prosecutor argued, “[S] sat on the [witness] stand and said to you . . . she contemplated taking her own life because she thought she was damaged goods.” The court sustained the defendant’s objection to this comment, and the defendant again moved for a mistrial. The court denied the motion, noting that the defendant also referenced S’s “psychological problems” in his closing. The court determined that “this is a jury that understands that there was, certainly, some type of psychiatric crisis, but the issue of whether it was suicidal or not was what was kept out of the jury’s consideration.” The defendant argues that, collectively, these instances evidenced the prosecutor’s intentional disregard for the court’s instructions throughout the trial in an attempt to inflame the passions of the jury, thereby amounting to prosecutorial impropriety and warranting a new trial. We do not agree.

“In analyzing claims of prosecutorial [impropriety], we engage in a two step analytical process. The two steps are separate and distinct: (1) whether [impropriety] occurred in the first instance; and (2) whether that [impropriety] deprived a defendant of his due process right to a fair trial. . . . [W]hen a defendant raises on appeal a claim that improper remarks by the prosecutor deprived the defendant of his constitutional right to a fair trial, the burden is on the defendant to show . . . that the remarks were improper . . . .” (Citation omitted; internal quotation marks omitted.) State v. Medrano, 308 Conn. 604, 610-11, 65 A.3d 503 (2013).

The defendant asserts that the prosecutor deliberately disregarded the court’s instructions regarding evidence of S’s suicidal ideation. A prosecutor must follow court rulings during trial, including evidentiary rulings. State v. Reynolds, 118 Conn. App. 278, 292, 983 A.2d 874 (2009), cert. denied, 294 Conn. 933, 987 A.2d 1029 (2010). Even if the prosecutor believes the court’s ruling is legally incorrect, he or she may not make arguments or encourage conduct in derogation of that ruling. Id. “A demonstrated deliberate effort by a prosecutor to influence the jury against the defendant through the attempted introduction of obviously inadmissible evidence may entitle the defendant to a new trial.” (Internal quotation marks omitted.) Id. When inadmissible evidence is introduced inadvertently and the prosecutor recognizes the error and then takes steps to correct it, the prosecutor’s conduct militates against any finding that he or she deliberately violated a corut order. See State v. Lopez, 280 Conn. 779, 801, 911 A.2d 1099 (2007).

The record lacks any evidence demonstrating that the prosecutor here deliberately violated any court ruling regarding the admissibility of references to suicidal ide-ation. The fust instance the defendant takes issue with occurred when the prosecutor asked a department worker, “What is crisis intervention?” and the worker explained that crisis intervention occurs when a child is “making suicidal ideations . . . .” After the court sustained the defendant’s objection the prosecutor did not revisit the question. The defendant has not directed this court’s attention to, nor can we find in the record, any order that would have precluded the prosecutor from asking this question. Without a relevant court order to purportedly violate, we find no impropriety here.

The circumstances surrounding the second alleged instance of impropriety, regarding Dr. Kubit’s testimony after the offer of proof, indicate that the prosecutor did not act deliberately in contravention of the court’s ruling. It was obviously a mistake for Dr. Kubit to use the phrase “suicidal ideation” shortly after the court ruled that she could make reference only to S’s “psychiatric treatment.” The prosecutor, following the defendant’s objection, immediately acknowledged the error and rephrased the question in accordance with the court’s ruling. There is nothing in the record to indicate that the prosecutor’s reaction was less than genuine. The prosecutor acknowledged on the record that she was surprised by the answer because Dr. Kubit was present when the court ruled that the reference to suicidal ideation was inadmissible. On the basis of the record, there is nothing to indicate that the prosecutor intentionally violated the court’s ruling.

Finally, there was no impropriety when the prosecutor recounted S’s testimony during closing arguments, stating that S “contemplated taking her own life because she thought she was damaged goods.” Our Supreme Court has advised: “[A] prosecutor may argue the state’s case forcefully, [provided the argument is] fair and based on the facts in evidence and the reasonable inferences to be drawn therefrom. . . . [T]he prosecutor has a heightened duty to avoid argument that strays from the evidence or diverts the jury’s attention from the facts of the case. ... A prosecutor, in fulfilling his duties, must confine himself to the evidence in the record.” (Citation omitted; internal quotation marks omitted.) State v. Taft, 306 Conn. 749, 766, 51 A.3d 988 (2012). This is to ensure the prosecutor does “not appeal to the emotions, passions and prejudices of the jurors . . . [which has] the effect of diverting the jury’s attention from [its] duty to decide the case on the evidence.” (Internal quotation marks omitted.) State v. Kendall, 123 Conn. App. 625, 632-33, 2 A.3d 990, cert. denied, 299 Conn. 902, 10 A.3d 521 (2010).

Here, in accordance with our jurisprudence, the prosecutor was merely recounting testimony that properly was in evidence. The prosecutor did not violate any court order or improperly appeal to the jury’s prejudices or passions during her closing argument, which was rightly based on the facts in evidence. The defendant’s claim fails because we find no improper conduct.

The judgment is affirmed.

In this opinion the other judges concurred.

       S’s cousin, sixteen years old at the time of trial, testified that the defendant had slapped her on the buttocks on multiple occasions as well. The cousin also stated that this made her feel uncomfortable and that the defendant claimed he was “just playing around.” The cousin also testified that the defendant had entered S’s room, without knocking, while she and S were dressing after having taken showers.

       We note that the trial court invited the defendant to request time to investigate in light of the amended information. The defendant stated that he would let the court know if he needed a continuance but never filed a motion for one.

       The defendant was acquitted of sexual assault in the second degree and, therefore, his rights were not prejudiced with respect to the circumstances surrounding this charge. See State v. Luster, 279 Conn. 414, 437, 902 A.2d 636 (2006) (prosecutorial misconduct). Our analysis is limited to the convictions for risk of injury to a child.

       The defendant’s brief presents two separate issues on appeal: (1) the court improperly denied his motion for a mistrial after the prosecutor deliberately violated a “court order,” and (2) prosecutorial impropriety. We interpret the defendant’s brief as only raising one claim, prosecutorial impropriety. An appeal from the denial of a motion for a mistrial that is based on a prosecutor’s alleged violation of an evidentiary court order is reviewed as a claim of prosecutorial impropriety. State v. Tok, 107 Conn. App. 241, 261, 945 A.2d 558, cert. denied, 287 Conn. 919, 951 A.2d 571 (2008).

       We feel obligated to comment that this court believes that S’s thoughts about suicide, especially in light of the expert testimony discussing the psychological effects of prior sexual abuse, were relevant to the charges. Also, we cannot reconcile how S’s “psychological problems” are relevant, yet the fact that she thought about suicide is not.

       At oral argument before this court, the defendant claimed that there was a specific court order reflecting that evidence of suicide “had clearly been forbidden by the court,” after S testified that she thought about killing herself. The defendant mischaracterizes the trial court’s rulings. Contrary to the defendant’s arguments, the court was merely summarizing a series of individual rulings when it stated, after closing arguments, “I have consistently ruled that [evidence of suicide] is not admissible.” This statement does not reflect the existence of a standing order. The defendant also directs our attention to trial counsel’s statement to the court, “The subject of suicide came up . . . [and] I thought after a sidebar, it was clear that it was not going to come up.” The trial court never issued a blanket order precluding any and all references to suicide. On the contrary, whenever the issue of suicide arose the court considered the admissibility of the evidence on a case-by-case basis, usually through an offer of proof. Furthermore, any argument that a standing order existed is undermined by the fact that the defendant allowed S to testify regarding her thoughts about suicide without objecting or moving to strike the testimony.

       The defendant’s brief cites to numerous studies in an attempt to show that the term “suicide” is inherently inflammatory and, moreover, that curative instructions are largely ineffective. We will not take these studies into account, as they were not part of the record before the trial court. Ariaga v. Commissioner of Correction, 120 Conn. App. 258, 261, 990 A.2d 910 (2010).

       In his reply brief, the defendant argues that this court should look to State v. Santiago, 143 Conn. App. 26, 66 A.3d 520 (2013), and invoke our supervisory powers, sua sponte, to reverse his conviction. We decline to entertain this argument because it was raised for the first time in the defendant’s reply brief. Perry v. State, 94 Conn. App. 733, 740 n.5, 894 A.2d 367, cert. denied, 278 Conn. 915, 899 A.2d 621 (2006).
      We note, however, that the facts in Santiago are strikingly different from the facts of this case. The prosecutor at issue in Santiago engaged in a “deliberate pattern of making [improper] comments in numerous other cases.” State v. Santiago, supra, 143 Conn. App. 28. We cited six other cases where our appellate courts had concluded that the prosecutor in Santiago had made improper remarks. Id., 45-46. Here, we have no evidence of conduct even remotely similar to that in Santiago. Defense counsel attempts to remedy this discrepancy by arguing that we should extend Santiago in a way that would result in a presumption of impropriety against all prosecutors in an office where any prosecutor has been accused of anything improper. There is no basis for this argument in Santiago, which involved the conduct of a lone prosecutor.