text:
    KAYLEE MANIFOLD ET AL. v. KRISTINE D. RAGAGLIA, COMMISSIONER OF CHILDREN AND FAMILIES, ET AL.
    (AC 27818)
    Harper, Lavine and Pellegrino, Js.

      Argued February 8
    officially released July 10, 2007

      Thomas C. Simones, with whom, on the brief, were Timothy A. Bishop and Stephen Burnham, legal intern, for the appellants (plaintiffs).

      Maite Barainca, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellees (named defendant et al.).
   Opinion

HARPER, J.

The plaintiffs, Kaylee Manifold and Matthew Manifold, and their parents, Billie Jo Zaks and Michael Manifold, appeal from the summary judgment rendered by the trial court in their action against the defendant employees of the department of children and families (department). On appeal, the plaintiffs claim that the court improperly rendered summary judgment on the grounds that the defendants were statutorily immune from suit pursuant to General Statutes § 4-165 or, alternatively, because the plaintiffs could not establish a cause of action for intentional or negligent infliction of emotional distress. The plaintiffs further contend that the court improperly concluded that they were not entitled to the injunctive relief requested in their complaint and deprived them of the opportunity to respond to arguments made in the defendants’ brief in support of their motion for summary judgment. We affirm the judgment of the trial court.

Our Supreme Court set forth the facts relevant to this appeal in Manifold v. Ragaglia, 272 Conn. 410, 862 A.2d 292 (2004). “On April 21, 2001, an anonymous caller from the office of the plaintiffs’ pediatrician at the Norwich Pediatric Group contacted the department to report that Kathleen Welch, a speech therapist with the Birth to Three Program, had noticed numerous bruises on both Matthew [Manifold] and Kaylee [Manifold], and a rash on Matthew [Manifold] while she was conducting a home based therapy session. In particular, Welch noticed that both children had bruises in the same location on their foreheads. [The children] were two and three years old, respectively, at this time.

“On April 24, 2001, [the defendant] Richard Days, a department social worker, made an unannounced visit to the plaintiffs’ home. Days informed the parents of the reason for the visit, and they consented to his examining the children. He noted that both children were dirty and had bruised foreheads, while Matthew [Manifold] also had extensive bruising on his entire back and a rash on the front and back of his torso. Upon questioning by Days, [Michael] Manifold explained that he had not taken Matthew [Manifold] to the pediatrician because he thought the rash was from Matthew [Manifold’s] recently having eaten $50 worth of chocolate. [Michael] Manifold explained to Days that his son bruised easily, and that he had sustained the bruises while roughhousing with his sister and playing with his new toy trucks and the family dog. Later that day, Days accompanied the plaintiffs to the office of their family pediatrician at the Norwich Pediatric Group.

“Upon their arrival, Days asked whether Richard Geller, the family’s regular pediatrician, could examine the children to determine whether there was reasonable cause to suspect that they had been abused. Geller stated that he was unable to examine the children at that time and that they should not have been brought to his office; he advised Days to take the children to the emergency room at [William H. Backus Hospital (Backus Hospital)] if an immediate examination was needed. Days then made an appointment with Geller for the following morning, but transported the plaintiffs to the . . . Backus [Hospital] emergency room for a more immediate evaluation.

“At . . . Backus [Hospital], [physician Robert] Creutz examined both children, and ordered an X ray of Matthew [Manifold]. The X ray revealed no fractures, but Creutz stated in the notes of his examination that Matthew [Manifold] had a rash and bruises on his head and chest, as well as three large bruises on his back. The report also noted that Matthew [Manifold] had bruises on his legs, knees, thighs and both buttocks. The parents told Creutz that the bruises were the result of roughhousing with the dog and his sister, as well as a fall. Both parents denied causing the injuries, and told Creutz that no one ever had struck Matthew [Manifold], except for ‘pats on the bottom.’ On the basis of the number and size of the bruises, Creutz concluded, however, that the bruises were typical of inflicted, rather than accidental, injuries, and he recommended further investigation of the injuries’ source. He testified at his deposition that he did not order any blood tests to determine whether a blood disorder contributed to the bruising because the physical findings alone raised a sufficiently high suspicion of child abuse to require that it be ruled out, even if the blood test result was positive.

“Creutz explained the results of the examination to Days, who in turn discussed them with other department personnel. Shortly thereafter, Jorge Osorio, a department supervisor, authorized a ninety-six hour hold of the children pursuant to General Statutes § 17a-lOlg (d). The children then were taken into department custody with the assistance of local police, and were placed in a licensed foster home. The department subsequently applied for and obtained orders of temporary custody of the children from the Superior Court for Juvenile Matters, Driscoll, J., on April 25, 2001.

“On April 25, 2001, Days met the children and the foster mother at the office of the Norwich Pediatric Group. At that time, Nancy Cusmano, a pediatrician, examined both children. Cusmano ordered blood tests for Matthew [Manifold], stating that a normal blood test would indicate a high probability of abuse. Upon receiving the results of the test, however, Cusmano informed Days that Matthew [Manifold’s] blood test showed some abnormalities, including a very low blood platelet count that generally causes clotting difficulties. She said that this condition could explain both the bruising and the rash. . . . Cusmano referred Matthew [Manifold] to Joseph McNamara, a hematologist at Yale-New Haven Hospital (Yale), for further evaluation. Thereafter, McNamara diagnosed Matthew [Manifold] with idiopathic thrombocytopenic purpura, a blood disorder, and admitted him to Yale for treatment. The following day, April 26, 2001, McNamara advised Days that the marks and bruising were consistent with the blood disorder. Matthew [Manifold] subsequently was discharged from Yale. In light of this new information, the court granted the department’s motion to vacate the orders of temporary custody. The department returned the children to the parents’ custody later that same day, and Days relayed the Yale discharge instructions to them.

“The neglect petitions that were filed with the court on April 25, 2001, however, remained active, although the department amended them to remove the initial allegations of physical abuse. The case was transferred to the department’s division of protective services for further monitoring and study. A social study subsequently was filed with the court, and the neglect petitions were withdrawn in October, 2001.

“In April, 2002, the plaintiffs instituted this action. In count one of the complaint, the plaintiffs alleged numerous acts of malice, negligence and recklessness by the . . . defendants with respect to the investigation. In count two of the complaint, the plaintiffs alleged that Creutz committed medical malpractice by failing to order a blood test, which resulted in a misdiagnosis of child abuse rather than a blood disorder. In count three, the plaintiffs made claims against [Backus Hospital] derivative of Creutz’ alleged malpractice. In count four, the plaintiffs alleged that the conduct of [the defendants, Creutz and Backus Hospital] constituted negligent infliction of emotional distress.” (Citation omitted.) Id., 413-17. On the basis of these allegations, the plaintiffs requested an award of monetary damages and injunctive relief.

The court, Gordon, J., rendered summary judgment as to counts two, three and four of the complaint in favor of Creutz and Backus Hospital, which was affirmed on appeal. See id., 410. On March 8, 2004, the defendants moved for summary judgment on the grounds that (1) the plaintiffs could not establish that the defendants’ conduct was wanton, malicious or reckless, as required to defeat the statutory immunity from suit provided by § 4-165, (2) the defendants’ alleged conduct was not “extreme and outrageous” as a matter of law and (3) the plaintiffs could not prove that they were entitled to any of the injunctive relief requested in their complaint. The court, Martin, J., denied the motion. Thereafter, the defendants appealed to this court, arguing that the court improperly treated their motion for summary judgment as a motion to dismiss.

On February 28, 2006, this court issued an opinion in which it agreed with the defendants and, accordingly, reversed the judgment of the court. See Manifold v. Ragaglia, 94 Conn. App. 103, 891 A.2d 106 (2006). On remand, the court, Hon. Robert C. Leuba, judge trial referee, rendered summary judgment on all counts in favor of the defendants. This appeal followed.

I

The plaintiffs claim that the court improperly rendered summary judgment on all counts of their complaint. The argument has two components. With regard to their emotional distress claims, the plaintiffs contend that the court improperly concluded that the defendants were immune from suit under § 4-165 or, alternatively, that the plaintiffs could not establish a colorable claim of either intentional or negligent infliction of emotional distress. With respect to their demand for injunctive relief, the plaintiffs assert that the court improperly rendered summary judgment on the basis of its conclusion that they failed to demonstrate that they would suffer irreparable harm or that they lacked an adequate remedy at law. We address each argument in turn.

“The standards governing our review of a trial court’s decision to grant a motion for summary judgment are well established. Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ....

“On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Because the trial court rendered judgment for the [defendants] as a matter of law, our review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Pepitone v. Serman, 69 Conn. App. 614, 618, 794 A.2d 1136 (2002).

Furthermore, as our Supreme Court has cautioned, “a party opposing 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. ... It is not enough . . . for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment].” (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 550, 791 A.2d 489 (2002).

A

The plaintiffs first claim that the court improperly determined that their causes of action are barred by the statutory immunity provided by § 4-165. Specifically, the plaintiffs contend that the evidence before the court raised a genuine issue of material fact as to whether the defendants acted wantonly, recklessly and maliciously, and were thus not entitled to immunity under § 4-165. We are not persuaded.

General Statutes § 4-165 (a) provides in relevant part: “No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his duties or within the scope of his employment. ...” (Emphasis added.) Accordingly, the dispositive question in this appeal is whether the evidence in the record is sufficient to raise a genuine issue as to whether the defendants’ conduct evinced a wanton, reckless and malicious intent.

In applying § 4-165, our Supreme Court has understood “wanton, reckless or malicious” to have the same meaning as it does in the common-law context. See Shay v. Rossi, 253 Conn. 134, 181-82, 749 A.2d 1147 (2000), overruled in part on other grounds, Miller v. Egan, 256 Conn. 301, 325, 828 A.2d 549 (2003). Under the common law, “[i]n order to establish that the defendants’ conduct was wanton, reckless, wilful, intentional and malicious, the plaintiff must prove, on the part of the defendants, the existence of a state of consciousness with reference to the consequences of one’s acts .... [Such conduct] is more than negligence, more than gross negligence. . . . [I]n order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them. ... It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action. ... [In sum, such] conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.” (Internal quotation marks omitted.) Id., 181.

On appeal, the plaintiffs draw our attention to two key allegations in the amended complaint, which, they argue, are supported by the evidence and raise a genuine issue as to whether the defendants acted wantonly, recklessly and maliciously. First, the plaintiffs alleged that the defendants filed the neglect petitions, removed the children from the home and pursued their investigation despite having knowledge that such actions were unsupported by the evidence. Second, the plaintiffs alleged that the defendants “pursued the petitions and supervision of the family, not for the statutory purpose of protecting the Manifold children, but in order to justify their own prior actions . . . .” In Shay v. Rossi, supra, 253 Conn. 134, our Supreme Court confirmed that wanton, reckless and malicious conduct can include actions taken with the improper and self-serving purpose of justifying prior unjustified actions. Id., 182. As a consequence, if the defendants knowingly and unjustifiably filed neglect petitions and prolonged their investigation of the family, as the plaintiffs allege, § 4-165 would afford them no refuge from suit.

Shay also made it clear, however, that to overcome the immunity provided under § 4-165, a plaintiff must produce facts from which a reasonable person could infer that the defendant acted with the requisite mental state of recklessness and malice. Id., 174-75. Here, the plaintiffs assert that there is evidence in the record establishing the following supporting facts: (1) that the defendants commenced their investigation without direct evidence concerning the parents’ alleged abuse of the children; (2) that on April 24, 2001, while at the Backus Hospital emergency room, Days and the defendant Daphne Knight, a department social worker, “refused” to permit additional testing on Matthew Manifold to determine if the bruising could have been caused by a medical condition; (3) that Days knowingly filed a false affidavit with the Juvenile Court in order to receive an order of temporary custody of the children; and (4) that although the allegations of physical abuse were removed from the neglect petitions soon after the discovery of Matthew Manifold’s illness in April, 2001, the department did not terminate its investigation until December, 2001.

In rendering summary judgment, the court concluded that the four supporting “facts” offered by the plaintiffs were either contrary to the evidence or insufficient to raise a genuine issue as to whether the defendants’ actions were wanton, reckless and malicious. Even after construing the facts adduced from the record in the light most favorable to the plaintiffs, we agree that the plaintiffs have failed to raise a genuine issue on this point.

At the outset, we observe that only the third factual allegation, concerning Days’ filing of a false affidavit, is pertinent to the question of whether the defendants acted wantonly, recklessly and maliciously. The remaining three allegations, even if they were proven, would not raise an inference that the defendants’ conduct exceeded the bounds of negligence or gross negligence, as required to defeat summary judgment on the ground of statutory immunity. As a result, although those allegations may be genuinely in dispute, they are not genuine issues of materialfact that would challenge the defendants’ entitlement to immunity under § 4-165. See Buell Industries, Inc. v. Greater New York Mutual Ins. Co., supra, 259 Conn. 556 (material fact defined as “a fact which will make a difference in the result of the case” [internal quotation marks omitted]).

With regard to the third allegation, that Days knowingly filed a false affidavit in order to receive an order of temporary custody, the court concluded that such an assertion was contrary to the evidence in the record. We agree. Beyond the allegations set forth in the complaint, we are unable to find, and the plaintiffs have not cited, any evidence in the record substantiating their claim that Days’ affidavit was not only false, but that Days knew it was false at the time that he filed it with the court. In fact, all of the evidence in the record supports the exact opposite conclusion, namely, that the statements made in Days’ affidavit were truthful in light of the facts known at the time and that Days filed the affidavit in good faith.

As stated previously, “[m]ere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment].” (Internal quotation marks omitted.) Id., 550. The dearth of evidence suggesting that the defendants acted with wanton, reckless and malicious intent is what distinguishes this case from Shay v. Rossi, supra, 253 Conn. 134. There, our Supreme Court concluded that the facts in the record raised a triable issue as to whether the department defendants acted with improper motives and with the self-serving purpose of justifying prior unjustified actions.

In contrast to Shay, however, the plaintiffs here have failed to supply evidence that would raise a genuine issue as to whether the defendants’ conduct evinced a wanton, reckless or malicious intent on their part. In the absence of a genuine dispute as to that question, the court concluded properly that the defendants were immune from suit pursuant to § 4-165.

B

Because the defendants are entitled to statutory immunity from suit, the plaintiffs cannot pursue their claim for monetary damages on the basis of intentional or negligent infliction of emotional distress. See Martin v. Brady, 261 Conn. 372, 375-77, 802 A.2d 814 (2002). Our inquiry has not ended, however, because the plaintiffs’ amended complaint also requested injunctive relief in the form of court orders directing (1) the defendants to expunge all of the department’s records relating to the plaintiffs and (2) the department “to inform its investigators of the facts and circumstances attending wrongful removals, so that injury to similar families can be averted.”

“The granting or denial of injunctive relief rests within the discretion of the trial court. ... To obtain such relief, the applicants must demonstrate that they would suffer irreparable harm and that they lack an adequate remedy at law. . . . Our review of the trial court’s denial of injunctive relief is limited to determining whether the decision was based on erroneous statements of law or on an abuse of discretion.” (Citations omitted.) Citicorp Mortgage, Inc. v. D’Avanzo, 31 Conn. App. 621, 627, 626 A.2d 800, cert. denied, 227 Conn. 909, 632 A.2d 688 (1993), cert. denied, 510 U.S. 1195, 114 S. Ct. 1303, 127 L. Ed. 2d 655 (1994).

With regard to the plaintiffs’ first request, the court refused to issue the injunction because the plaintiffs failed to exhaust their administrative remedies. See Housing Authority v. Papandrea, 222 Conn. 414, 418-19, 610 A.2d 637 (1992). Section 17a-101 (e)-4 (d) of the Regulations of Connecticut State Agencies expressly provides in relevant part that “[rjeports of child abuse or neglect determined to be unfounded will be expunged from the Child Abuse and Neglect Registry . . . .” In accordance with that regulation, the department has created a procedure whereby a person may challenge a finding of child abuse in a hearing before an administrative tribunal. See Department of Children and Families Policy Manual, §§ 22-12-2 through 22-12-8.

Here, the plaintiffs have not alleged, and the record does not reflect, whether there was a hearing concerning the merits of the accusations of neglect. Furthermore, the plaintiffs have not claimed that they requested a hearing to determine whether the department should expunge its records pursuant to § 17a-101 (e)-4 of the Regulations of Connecticut State Agencies. Under these circumstances, we cannot say that the court abused its discretion in refusing to issue the requested injunc-tive order.

Turning to the plaintiffs’ second request for injunctive relief, the court observed that the plaintiffs failed to allege that the department does not currently educate its investigators about “the facts and circumstances attending wrongful removals . . . .” Indeed, the comprehensive nature of the regulations governing the removal of children is indicative of a strong departmental concern about the danger of taking such action without legitimate cause. See Regs., Conn. State Agencies §§ 17a-101-ll through 17a-101-13 and 17a-101 (e)-l through 17a-101 (e)-5. In light of these facts, and the lack of any evidence in the record to the contrary, we conclude that the court did not abuse its discretion in refusing to grant the requested injunctive relief.

II

Last, we address the plaintiffs’ claim that the court improperly relied on arguments made for the first time in the defendants’ brief in support of their motion for summary judgment. Specifically, the plaintiffs contend that the parties’ submission of simultaneous briefs deprived them of a chance to respond to the defendants’ brief. We are not persuaded.

The following additional facts are pertinent to our resolution of the plaintiffs’ claim. On March 27, 2006, the plaintiffs amended their complaint in order to reflect the dismissal of Creutz and Backus Hospital as defendants in the action. Thereafter, the defendants filed a motion requesting that the court apply their pending motion for summary judgment and supporting documents to the amended complaint. The court granted the motion.

On April 19, 2006, a hearing was held concerning the defendants’ motion for summary judgment. During the hearing, the defendants raised several legal issues related to their motion, including the reasoning employed by the Supreme Court in Manifold v. Ragag-lia, supra, 272 Conn. 410. After listening to arguments from both parties, the court observed that the plaintiffs’ legal position had changed somewhat in accordance with their recent amendments to the complaint. Consequently, the court asked each party to submit simultaneously new briefs outlining their current legal arguments. Neither party objected to that course of action.

On May 12, 2006, the parties submitted their briefs simultaneously to the court for consideration. Thereafter, on June 15, 2006, the court issued a memorandum of decision rendering summary judgment in favor of the defendants on all counts. It is undisputed that the plaintiffs neither filed an objection to the defendants’ brief on the ground that it contained new legal arguments, nor asked the court for an opportunity to respond thereto.

The plaintiffs concede that they never objected to the court’s suggestion that they file their briefs simultaneously or filed a request for permission to file a supplemental brief responding to the new arguments made by the defendants. Nevertheless, they request that we reverse the judgment on this ground pursuant to the plain error doctrine. See Practice Book § 60-5. On the basis of the record before us, we conclude that granting such relief would be quite inappropriate.

As our Supreme Court often has stated, “the plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Fagan, 280 Conn. 69, 87, 905 A.2d 1101 (2006), cert. denied, 549 U.S. 1269, 127 S. Ct. 1491, 167 L. Ed. 2d 236 (2007). Here, the plaintiffs did not receive an opportunity to respond to the defendants’ arguments only because they failed to request it. There is no evidence suggesting that the court would have denied the plaintiffs’ request had such a request been made. Because the failure to respond was solely and inexplicably self-induced, it did not create the sort of “extraordinary situation” that would warrant reversal as plain error.

The judgment is affirmed.

In this opinion the other judges concurred.

       The following employees are the only defendants remaining in the action:
      (1) Richard Days, a social worker; (2) Daphne Knight, a social worker; (3) Nancy Leibeson-Davis, a social work supervisor; and (4) Antonio Donis, a program supervisor. All four defendants were sued originally in both their individual and official capacities; the claims against them in their official capacities, however, were later withdrawn. For the purpose of this appeal, we will refer to Days, Knight, Leibeson-Davis and Donis collectively as the defendants.

       Additionally, the plaintiffs claim that the court improperly failed to construe the evidence and pleadings in the light most favorable to them in determining that they had not established colorable claims of intentional and negligent infliction of emotional distress. Because we conclude that the defendants enjoy immunity from suit under § 4-165, we do not reach the merits of these alternate grounds on which the court rendered summary judgment.

       As further proof of the defendants’ alleged improper motives, the plaintiffs also cite evidence indicating that Zaks suffered extreme emotional distress as a result of the department’s actions in this case. While not disregarding such evidence, we also cannot ignore that in furtherance of its statutorily defined puipose of protecting children from abuse, the department may be forced to take actions that parents will find extremely distressful. As a result, evidence that family members may have suffered emotional distress does not raise a genuine dispute as to the existence of an intent to inflict such distress on them.

       We cannot accept the plaintiffs’ claim that the defendants’ investigation into the suspected abuse and neglect of the Manifold children is, by itself, evidence of a wanton, reckless and malicious intent on the defendants’ part. On the contrary, upon receipt of a report concerning the potential abuse and neglect of the Manifold children, the department was under a statutory duty to conduct an investigation and, if necessary, to “authorize any employee of the department ... to remove the child and any other child similarly situated . . . without the consent of the child’s parent or guardian. . . .” General Statutes § 17a-101g (e).
      Furthermore, we reject the plaintiffs’ suggestion that the department must be absolutely certain as to the existence of abuse before taking action to ensure the safety of the children at issue. Section 17a-101g (e) compels the department to act if there is “probable cause to believe that the child . . . is in imminent risk of physical harm from the child’s surroundings and that immediate removal from such surroundings is necessary to ensure the child’s safety . . . .” (Emphasis added.) The statute does not require the department to first rule out all alternative explanations for the circumstances giving rise to the suspicion of abuse, and the plaintiffs have cited no law establishing the existence of such a duty.

       With regard to the veracity of the statements made in Days’ affidavit, we note that his suspicion of abuse was founded on the medical opinion of Creutz, and Days’ personal observations regarding the extent and severity of Matthew Manifold’s injuries. We also observe that during her deposition, Zaks was unable to identify any specific statement in the affidavit that she believed to be factually inaccurate, despite being questioned extensively about the statements contained therein.
      In terms of Days’ intentions in filing the affidavit, we draw attention to the plaintiffs’ admission in paragraphs nineteen and twenty of their amended complaint that Days filed the neglect petitions in reliance on the statements and conclusions of Creutz. Furthermore, it is undisputed that Days promptly returned the children to their parents after learning of Matthew Manifold’s blood disorder, and the department filed a motion to vacate the orders of temporary custody on April 26, 2001, the day after Matthew Manifold’s diagnosis. The rapid return of the children, coupled with the immediate filing of the motion to vacate the orders of temporary custody, strongly suggests that neither Days nor the department acted with wanton, reckless or malicious intent when responding to the situation.

       The plaintiffs argue in their brief that they could not avail themselves of this administrative procedure because this case involved “statutory issues of sovereign immunity . . . .” In support of this contention, the plaintiffs remind us that administrative decisions involving the construction or interpretation of statutes are reviewed de novo. Besides its reliance on the faulty premise that this case raises issues of statutory construction, this argument misses the point. “It is a settled principle of administrative law that, if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter.” (Internal quotation marks omitted.) Housing Authority v. Papandrea, supra, 222 Conn. 420. As such, the amount of deference accorded to an agency’s determination is wholly unrelated to whether the court has jurisdiction by virtue of the plaintiffs’ exhaustion of all available administrative remedies.


source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    DAVID JACOBOWITZ v. VIRGINIA JACOBOWITZ
    (AC 27182)
    Gruendel, Harper and Foti, Js.

      Argued February 7
    officially released July 10, 2007

      Lloyd L. Langhammer, with whom, on the brief, was Matthew J. Curtiss, for the appellants (plaintiff and third party defendants).

      Ellen C. Brown, with whom, on the brief, was John C. Valliere, for the appellee (defendant).
   Opinion

GRUENDEL, J.

This appeal arises from a marital dissolution action in which the trial court found that the transfer of certain properties by the plaintiff, David Jacobowitz, to his mother, Gloria Sanschagrin, and his sister, Karen J. Aravich, and by them to the Jacobowitz Mobile Home Park, Inc. (mobile home park), constituted a fraudulent conveyance that improperly removed the properties from the marital estate. The plaintiff and the third party defendants, Sanschagrin, Aravich and the mobile home park collectively, appeal from the judgment of the trial court, claiming that it improperly (1) set aside a mortgage when the issue had not been raised by the defendant, Virginia Jacobowitz, (2) found afraud-ulent conveyance and (3) failed to dismiss the defendant’s third party complaint. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the issues on appeal. The defendant began living with the plaintiff in 1986 in Montville. On September 14, 1987, the plaintiff executed a promissory note to Sanschagrin, promising to repay the sum of $500,000, pursuant to a schedule as recorded on the land records. In order to secure the money, the plaintiff mortgaged properties located on Fellows Road and Route 163. The money was reputedly for the plaintiffs trucking company, which he operated as the sole proprietor from 1979 to 2000.

The plaintiff and the defendant were married on August 11, 1990, and in December, 1999, the defendant originally filed for divorce from the plaintiff. On January 12,2000, after having paid Sanschagrin $66,000 pursuant to the agreement, the plaintiff executed a blanket mortgage to her, in which he mortgaged the properties located on Fellows Road and Route 163, as well as the marital properties on Lathrop Road and Cottage Road, to secure the promissory note that he had executed in 1987. The mortgage was recorded on the land records. The dissolution action was dismissed by the court in April, 2000, as the defendant had not pursued the action due to an attempted reconciliation. On May 31, 2000, the plaintiff transferred the properties on Fellows Road and Route 163 to Sanschagrin.

On December 22, 2000, the plaintiff convinced the defendant to sign the marital properties on Lathrop Road and Cottage Road over to him, and then drove her to his attorney’s office in New London in an attempt to have her sign divorce papers. The next day, the plaintiff transferred the properties to Aravich. The plaintiff testified that the transfers were made because of debt he owed to his mother and sister. No appraisals were obtained prior to the transfers, and the record reveals that the properties were worth more than the debt owed. On October 30, 2001, Sanschagrin and Ara-vich transferred the Lathrop Road, Fellows Road and Route 163 properties to the mobile home park, a Nevada corporation of which they were the only stockholders and for which the plaintiff was the sole employee.

The plaintiff filed for divorce from the defendant on December 11, 2002, and the defendant filed an answer on January 9,2003, in which she agreed with the plaintiff that the marriage had “broken down irretrievably with no hope of reconciliation.” On March 19, 2004, she filed a third party complaint against Sanschagrin, Aravich and the mobile home park in which she claimed that the conveyances, both from the plaintiff to Sanschagrin and Aravich, and from Sanschagrin and Aravich to the mobile home park, removed or were executed with the intent to remove property from the marital estate, which otherwise would have been subject to equitable distribution. During the pending dissolution proceeding, the plaintiff filed a financial affidavit dated August 2, 2005, in which he did not list any of the properties as an asset.

A six day trial to the court commenced on August 2, 2005, and concluded on November 17, 2005. By memorandum of decision filed November 18, 2005, the court dissolved the marriage, finding that it had “broken down irretrievably without any hope for reconciliation” and that the parties were equally at fault for the breakdown. The court continued: “Before setting forth any orders pursuant to the provisions of the pertinent Connecticut statutes, the court must first decide the defendant’s claim of fraudulent transfer by the plaintiff of real property owned by him solely and of real property owned by the plaintiff and [the] defendant during the marriage of the parties. Such a determination is necessary to determine the marital estate.” After a thorough analysis of the testimony and evidence, the court found that all of the conveyances were made “without any consideration and . . . with the intent to remove [property] from the parties’ marital estate that otherwise would have been subject to the claims of equitable distribution.” The court ordered the plaintiff to pay a sum of money to the defendant within ninety days or the conveyances would be set aside and the defendant would receive one half of the interest in the properties. This appeal followed.

I

The plaintiff and the third party defendants first claim that the court improperly set aside the mortgage that the plaintiff had executed to Sanschagrin. Specifically, they claim that the defendant failed to plead that the mortgage should be set aside, and the court’s action was therefore improper. Although we agree with the parties that “the right of a plaintiff to recover is limited by the allegations of the complaint . . . and any judgment should conform to the pleadings, the issues and the prayers for relief1’; (internal quotation marks omitted) Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 686, 804 A.2d 823 (2002); we disagree with the plaintiffs and the third party defendants’ conclusion.

“The standard of review in family matters is well settled. An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Chyung v. Chyung, 86 Conn. App. 665, 667-68, 862 A.2d 374 (2004), cert. denied, 273 Conn. 904, 868 A.2d 744 (2005).

The court stated in its memorandum of decision that “the circumstances surrounding the agreement, its time of execution and the terms of the agreement make the validity of the agreement suspect. Therefore, the court finds that the mortgage was not valid as a claim above the defendant’s right to share in the marital assets of the parties.” The court is in the position to hear the testimony and assess the credibility of the parties. Although the plaintiffs blanket mortgage to his mother indisputably was documented in the land records, the court clearly stated that it found the validity of the agreement “suspect” and the plaintiffs testimony not credible.

We do not view the court’s action as intending to set aside the mortgage. On the contrary, the court simply determined that it would not be considered in the equitable distribution of the marital assets, which was well within the court’s discretion. “A fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria. . . . In reviewing the trial court’s decision under [an abuse of discretion] standard, we are cognizant that [t]he issues involving financial orders are entirely interwoven. The rendering of judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.” (Internal quotation marks omitted.) Gervais v. Gervais, 91 Conn. App. 840, 844, 882 A.2d 731, cert. denied, 276 Conn. 919, 888 A.2d 88 (2005). The plaintiffs and the third party defendants’ claim thus fails.

II

The plaintiff and the third party defendants next claim that the court’s finding of a fraudulent conveyance was improper. Specifically, they argue that the court used the incorrect standard of law to invalidate the conveyances from Sanschagrin and Aravich to the mobile home park and that it used the incorrect standard for determining whether those conveyances were fraudulent. We disagree on both counts.

“The question of whether a fraudulent conveyance took place is solely a question of fact to be determined by the trier. . . . We will not disturb the trial court’s factual findings unless they are clearly erroneous and unsupported by the record.” (Internal quotation marks omitted.) National Loan Investors, L.P. v. World Properties, LLC, 79 Conn. App. 725, 731, 830 A.2d 1178 (2003), cert. denied, 267 Conn. 910, 840 A.2d 1173 (2004) .

“The party seeking to set aside a conveyance as fraudulent bears the burden of proving either: (1) that the conveyance was made without substantial consideration and rendered the transferor unable to meet his obligations; or (2) that the conveyance was made with a fraudulent intent in which the grantee participated.” Tyers v. Coma, 214 Conn. 8, 11, 570 A.2d 186 (1990). “If the fraudulent conveyance claim is joined with a marriage dissolution action . . . the court is not concerned with whether the transfer renders the transferor insolvent or unable to meet his or her obligations. In such a situation, the issue is whether the conveyance removed property from the marital estate that would otherwise have been subject to claims of equitable distribution.” Tessitore v. Tessitore, 31 Conn. App. 40, 42, 623 A.2d 496 (1993).

The plaintiff and the third party defendants contend that the standard used in Tessitore is solely applicable to the transfers from the plaintiff to Sanschagrin and Aravich and not to the transfers from Sanschagrin and Aravich to the mobile home park. They claim that because the third party defendants are not parties to the dissolution action, the court instead should have applied the two-pronged test annunciated in Tyers. Further, they claim that the defendant did not allege facts to prove that the transfers between the third party defendants were made “to cause insolvency.” The plaintiff and the third party defendants thus conclude that only the second prong in Tyers is applicable, and the defendant must prove by clear and convincing evidence “actual intent to defraud.”

The defendant’s third party complaint expressly stated that the conveyances of the three properties removed, or were made with the intent to remove, property from the marital estate, which otherwise would have been subject to equitable distribution. The court therefore did not abuse its discretion in joining the claim of fraudulent conveyances to the marital dissolution action, and it properly applied the Tessitore standard. There was ample evidence available for the court to conclude that the mobile home park was not a good faith purchaser; it was a closely held corporation, of which Sanschagrin and Aravich were the only shareholders and for which the plaintiff was the sole employee. Additionally, there was no consideration for the transfers.

“A fraudulent conveyance must be proven by clear and convincing evidence . . . .” (Citation omitted.) Tessitore v. Tessitore, supra, 31 Conn. App. 43; see also Farrell v. Farrell, 36 Conn. App. 305, 309, 650 A.2d 608 (1994). The court explicitly found, “by clear and convincing evidence, that the plaintiff, with the agreement and, or, acquiescence of Sanschagrin and Aravich, fraudulently conveyed all of the aforesaid referred to real properties to Sanschagrin and Aravich and subsequently by them to the [mobile home park]; that said conveyances were without any consideration and made with the intent to remove from the parties’ marital estate [property] that would otherwise have been subject to the claims of equitable distribution.” Accordingly, the plaintiffs and the third party defendants’ claim that the court used an incorrect standard in relation to the third party defendants fails.

The plaintiff also argues that the court misapplied the case law because the transfers were made before the dissolution action. He cites Gaudio v. Gaudio, 23 Conn. App. 287, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990), for the proposition that “[t]he proper question in this context is whether, after the institution of a dissolution action, the conveyance removed property from the marital estate that would otherwise have been subject to claims of equitable distribution.” (Emphasis added.) Id., 308. We disagree with the plaintiffs assertion that Gaudio “establishes that this standard only applies to conveyances that occurred after the institution of the dissolution action.” (Emphasis added.) On the contrary, we conclude that our Supreme Court’s reasoning in Molitor v. Molitor, 184 Conn. 530, 440 A.2d 215 (1981), better reflects the appropriate policy regarding fraudulent conveyances in marital dissolution actions. “While neither marriage nor an action for dissolution serves, in and of itself, to transfer an interest in property from one spouse to another . . . the institution of judicial proceedings serves, at least between the parties, to preserve the status quo from impairment by fraud. A transfer made after notice of an actual or imminent action seeking alimony or support may be found fraudulent and set aside.” (Emphasis added.) Id., 534.

As the court in the present case found, the defendant originally filed for divorce in December, 1999, and the plaintiff executed the blanket mortgage to his mother the following month. Although the parties reconciled, the court did not find credible the plaintiffs explanation of the subsequent transfers, and there was ample evidence to support its conclusion that “the circumstances surrounding the agreement, its time of execution and the terms of the agreement make the validity of the agreement suspect.” Despite the plaintiffs assertion during oral argument that discord in marriage is not uncommon, we conclude that he had adequate notice of a pending dissolution action when he made the transfers. The fact that the plaintiff preempted the defendant by filing the second dissolution action himself does not absolve the transfers from being declared fraudulent by the court. Accordingly, the plaintiffs and the third party defendants’ claim fails.

Ill

The plaintiff and the third party defendants next claim that the court’s denial of the third party defendants’ motion to dismiss was improper. We are unpersuaded.

Practice Book § 15-8 provides in relevant part: “If, on the trial of any issue of fact in a civil action tried to the court, the plaintiff has produced evidence and rested his or her cause, the defendant may move for judgment of dismissal, and the judicial authority may grant such motion, if in its opinion the plaintiff has failed to establish a prima facie case. ...” “Whether the plaintiff has established a prima facie case is a question of law, over which our review is plenary.” Cadle Co. v. Errato, 71 Conn. App. 447, 456, 802 A.2d 887, cert. denied, 262 Conn. 918, 812 A.2d 861 (2002). “The standard for determining whether the plaintiff has made out a prima facie case, under Practice Book § 15-8, is whether the plaintiff put forth sufficient evidence that, if believed, would establish a prima facie case, not whether the trier of fact believes it. . . . For the court to grant the motion [for judgment of dismissal pursuant to Practice Book § 15-8], it must be of the opinion that the plaintiff has failed to make out a prima facie case. In testing the sufficiency of the evidence, the court compares the evidence with the allegations of the complaint. ... In order to establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove. . . . [T]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiffs] favor.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Gambardella v. Apple Health Care, Inc., 86 Conn. App. 842, 846-47, 863 A.2d 735 (2005).

We reiterate that the third party complaint of the defendant, who was the plaintiff in the third party action, alleged that the conveyances of the three properties from Sanschagrin and Aravich to the mobile home park removed, or were made with the intent to remove, property from the marital estate, which otherwise would have been subject to equitable distribution. Ample testimony and evidence was presented that the conveyances occurred during a period of marital discord and that the consideration given for them was inadequate. There was sufficient testimony given for the court to conclude that the defendant, as a third party plaintiff, had made out a prima facie case, and the court properly denied the third party defendants’ motion to dismiss.

The judgment is affirmed.

In this opinion the other judges concurred.

       Because it has been briefed inadequately, we decline to address the plaintiffs and third party defendants’ final claim. Their appellate brief states: “The term ‘transfer’ is defined by General Statutes § 52-552b (12) to mean ‘every mode, direct or indirect, absolute or conditional, voluntary or involuntary, or disposing of or parting with an asset or interest in an asset, and includes payment of money, release, lease and creation of a hen or other encumbrance.’ ” Their rather sparse argument merely recites definitions pursuant to § 52-552b of the Uniform Fraudulent Transfer Act, General Statutes § 52-552a et seq., to conclude that “a transfer cannot be considered fraudulent if, at the time of the transfer, the transferred property is encumbered by valid hens exceeding the property’s value because the property would no longer be considered an asset under General Statutes § 52-552b (2), and only assets may be transferred fraudulently.” Their sole citation to Dietter v. Dietter, 54 Conn. App. 481, 737 A.2d 926, cert. denied, 252 Conn. 906, 743 A.2d 617 (1999), for this proposition is inapposite. “[W]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) Valentine v. LaBow, 95 Conn. App. 436, 452, 897 A.2d 624, cert. denied, 280 Conn. 933, 909 A.2d 963 (2006).

       The payment schedule provided that the money was to be repaid to Sanschagrin “at the rate of $500 monthly commencing January 1,1988, until January 1,2000, totaling $66,000. On or before January 1,2000, [the plaintiff] will pay his mother 8100,000. Thereafter, on the first of January of each year until January 1, 2005, he will pay $50,000, and on January 1, 2006, it will balloon and he will pay her the sum of $84,000.”

       In its memorandum of decision, the court documented 1he acquisitions of the four properties: “On December 2, 1986, Leonard Jacobowitz deeded t o the plaintiff real property known as the Route 163 in said town of Montville as a gift, as no consideration was paid for same.
      “On December 13, 1988, Sarah Jacobowitz deeded to the plaintiff real property known as 163-164 Fellows Road located in Montville ... as a gift, as no consideration was paid for same.
      “In April, 1991, after their marriage, the parties purchased 38 Cottage Road in said town of Montville for $200,000. [The] [pjlaintiff testified that he paid $100,000 on said property from money he had saved from his employment. The balance of the purchase price was paid by a mortgage on said property.

        “On July 31, 1998, the parties purchased the real property known as Lathrop Road in said town of Montville for $220,000. They paid $40,000 down and gave a purchase money mortgage of $180,000 to the seller, which mortgage remains unpaid.”

       The court noted that “at the time the mortgage was executed, the $500,000 allegedly owed to Sanschagrin was not decreased by the $66,000 the plaintiff claimed he had paid Sanschagrin prior to January, 2000.”

       The defendant testified that the plaintiff “picked me up at work and he told me we were going to the bank, and I didn’t know at that time we were signing papers. And he was telling me that we have to sign papers, and we have to do it today or we’re going to lose our home; that he said he was going bankrupt and-—and that he had a lot of bills and more likely told me that if I didn’t sign the papers, he wasn’t going to stay with me because we’re going to lose our home.” When asked whether she had signed the papers, she replied: “I wanted to believe what he said, so, yes, I did sign the papers.”

       Although the defendant signed her copy of the divorce papers, she took the signed document with her and did not sign any additional copies. She introduced her copy as an exhibit for trial.

       The Cottage Road property, which included the marital home, subsequently was sold to a bona fide good faith purchaser in 2004 and is not at issue in this appeal. See Molitor v. Molitor, 184 Conn. 530, 535-36, 440 A.2d 215 (1981) (“a conveyance may judicially be declared void and set aside as against any person except a purchaser for fair consideration without knowledge of the fraud at the time of purchase, if the conveyance was fraudulent”); see also General Statutes § 52-552Í (a) (“[a] transfer or obligation is not voidable under subdivision [1] of subsection [a] of section 52-552e against a person who took in good faith and for a reasonably equivalent value”).

       The court also ordered payment of alimony to the defendant and child support for the parties’ minor child.

       We note that the result of the present case is distinguishable from that in Tessitore, in which this court held that “the trial court’s corrected memorandum of decision fails to state the standard of proof that it used. Under such circumstances, we assume that the usual civil preponderance of the evidence standard was used. . . . [B]ecause we are not satisfied that the more exacting, clear and convincing standard was used, we reverse the trial court’s finding and order a new trial.” (Citations omitted.) Tessitore v. Tessitore, supra, 31 Conn. App. 43.


author: HARPER, J.

text:
    STATE OF CONNECTICUT v. PHILIP MANN
    (AC 26957)
    McLachlan, Gruendel and Harper, Js.

      Argued March 27
    officially released July 10, 2007

      Ruth Daniella Weissman, special public defender, for the appellant (defendant).

      Denise B. Smoker, senior assistant state’s attorney, with whom, on the brief, were Timothy J. Liston, state’s attorney, and Susan Whitman Hatfield, former special deputy assistant state’s attorney, for the appellee (state).
   Opinion

HARPER, J.

The defendant, Philip Mann, appeals from the judgment of conviction, rendered following a trial to the court, of criminal mischief in the third degree in violation of General Statutes § 53a-117 (a) (1) (A) and disorderly conduct in violation of General Statutes § 53a-182 (a) (2). The defendant claims that (1) the evidence did not support the conviction, and (2) §§ 53a-117 (a) (1) (A) and 53a-182 (a) (2) are void for vagueness. We affirm the judgment of the trial court.

I

The defendant first claims that, with regard to the crime of disorderly conduct, the evidence was not sufficient to prove that, by his disorderly or offensive conduct, he annoyed or interfered with another person. With regard to the crime of criminal mischief, the defendant claims that the evidence was not sufficient to prove that he caused any damage to the tangible property of another. The defendant also claims that the evidence was not sufficient to prove that he acted with the requisite mental state required for the commission of either crime. We disagree.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that of the [finder of fact] if there is sufficient evidence to support the [finder of fact’s] verdict.” (Internal quotation marks omitted.) State v. Oberdick, 74 Conn. App. 57, 61, 810 A.2d 296 (2002).

The state presented evidence that on July 15, 2004, the defendant met by appointment with Dawne West-brook, an attorney, in the conference room of a law office in Middletown. During their meeting, the defendant became upset upon realizing that he had not brought certain documents with him to the meeting. The defendant became agitated; he threw a chair in the direction of a window and “slammed” the chair against the floor several times. The defendant thereby damaged the metal framed chair, rendering it unusable, and caused a gouge in the conference room’s carpeting. The defendant’s conduct frightened Westbrook. In an effort to calm him so that she could safely remove herself from the situation, Westbrook encouraged the defendant to return home to retrieve his documents.

Lisa Thurston, a receptionist at the law firm, heard the commotion and observed the defendant’s conduct through glass doors that led into the conference room. Thurston became fearful, in part for Westbrook’s safety, and began shaking. She asked Westbrook if she should call 911. Westbrook replied that everything was fine because she did not want to make the defendant angrier. Thurston also became so concerned that she called and sought the advice of another attorney associated with the law firm. When the defendant ultimately left the premises to retrieve his documents, Thurston locked the office doors and called 911. Middletown police officers responded to the scene and, upon the defendant’s return, spoke with the defendant. The defendant admitted to the officers that he had “picked up a chair and banged it on the floor” but said that he did not mean to harm anyone. The officers instructed the defendant not to return to the office and, at a later date, arrested him.

The defendant’s arguments may be summarized as follows. He argues that his conduct was merely “thoughtless, inadvertent or simply inattentive” and posits that he did not injure or intend to injury anyone. He characterizes Thurston’s response to his outburst as “a sensitive overreaction” to his conduct and generally minimizes the effect that his conduct had on Westbrook and Thurston. On the one hand, the defendant acknowledges that the evidence supported a finding that he damaged a chair to the extent that it was unusable and that he damaged the carpeting in the office. On the other hand, he argues that the evidence that supported such a finding was insufficient because it was testimonial in nature. The defendant also argues that the damage caused by his behavior was minimal and that far greater damage is required to satisfy the criminal mischief statute.

We decline the defendant’s invitation to construe the evidence in the light most favorable to him and will, instead, construe the evidence in the light most favorable to upholding the finding of his guilt. See State v. Newton, 59 Conn. App. 507, 513-14, 757 A.2d 1140, cert. denied, 254 Conn. 936, 761 A.2d 764 (2000). The evidence amply supported a finding that the defendant annoyed or interfered with Westbrook and Thurston. His offensive and disorderly conduct in a professional workplace frightened both victims more than momentarily, interfered with their performance of their workplace duties and prompted Thurston to summon police assistance. The court, as finder of fact, drew reasonable inferences from the defendant’s conduct in an effort to determine his mental state at the time of his disruptive outburst. That conduct reasonably permitted a finding that the defendant acted with the mental state required for the commission of the crimes. Finally, there was ample, undisputed evidence that the defendant damaged tangible property in the law office. The defendant attempts to persuade us, on the basis of pure speculation, unconnected to the evidence, that the tangible property at issue was of “poor quality” and that “any damage [he] caused should be viewed as more akin to wear and tear rather than criminal mischief . . . .’’This argument is not only unsupported by the evidence but is contrary to the evidence, for it is unreasonable to conclude that the defendant’s treatment of the property at issue was akin to “wear and tear.” Further, the state bore the burden of proving that the defendant intentionally or recklessly “damag[ed] tangible property of another . . . .” General Statutes § 53a-117 (a) (1) (A). Even if the defendant’s characterization of the property was supported by the evidence, the statute does not burden the state to prove the existence of damage of or more than a certain dollar amount or that the damaged property was of a certain quality. Thus, the damage proven at trial easily satisfied the requirements of the criminal mischief statute.

II

The defendant next claims that the disorderly conduct and criminal misconduct provisions at issue are vague facially and as applied. The defendant argues that § 53a-182 (a) (2) “overlaps” with General Statutes § 53a-181a (a) (2), that “reckless conduct cannot be proscribed by the statute,” and that his conduct “was either not grossly offensive under contemporary community standards and/or did not interfere or impede with the lawful activity of anyone then present in the manner set forth by prior case law . . . .” Also, the defendant argues that § 53a-117 (a) (1) (A) does not require that a “minimum amount of damage” be proven and that the state proved, at best, that “minimal damage” occurred as a result of reckless, rather than intentional, conduct.

We have reviewed the defendant’s claims in detail and conclude that they are wholly without merit. It would serve no useful purpose for us to analyze these claims in any detail here.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court found the defendant not guilty of reckless endangerment in the second degree. The court sentenced the defendant to serve a term of incarceration of thirty days, execution suspended, and one year of conditional discharge.


text:
    R AND R POOL AND PATIO, INC., ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF RIDGEFIELD
    (AC 27828)
    DiPenlima, Gruendel and Hennessy, Js.
    Argued March 14
    officially released July 10, 2007

      Robert A. Fuller, for the appellants (plaintiffs).

      Patricia C. Sullivan, with whom, on the brief, was Barbara M. Schellenberg, for the appellee (defendant).
   Opinion

GRUENDEL, J.

The plaintiffs, R & R Pool & Patio, Inc., Mitchell Ross, David Ross and Philip Ross, appeal from the judgment of the trial court rendered in favor of the defendant, the zoning board of appeals of the town of Ridgefield (board), following the granting of the defendant’s motion to strike the complaint. Appeals relating to the plaintiffs’ use of their property have been before this court on four previous occasions. In this appeal, the plaintiffs claim that the court improperly determined that the board was not required to review their site plan application within the time constraints delineated in General Statutes §§ 8-7d (b) and 8-3 (g). We affirm the judgment of the trial court.

We initially adopt the comprehensive recitation of facts and procedural history of this court in R & R Pool & Patio, Inc. v. Zoning Board of Appeals, 83 Conn. App. 1, 847 A.2d 1052, cert. denied, 271 Conn. 921, 859 A.2d 580 (2004). “In July, 1990, the board granted Richard Amatulli, a tenant of the property at that time, a variance that permitted him to conduct ‘wholesale and retail sales . . . from the [property], unrestricted as to type of customer or hours of operation, but restricted as to products to be sold. Such wholesale and retail sales shall be limited to oriental rugs, fine furniture and art.’ ... In 1993, the then owners of the property filed an application on behalf of a new tenant, the present corporate plaintiff ... to operate a warehouse and an office on the property and to conduct retail sales of ‘fine outdoor furniture.’ The Ridgefield town planning director denied the application, and the board sustained the denial. The board based its decision on the determination that the furniture that the plaintiffs proposed to sell was not the type of merchandise for which the variance had been granted to Amatulli. The owners and the plaintiffs appealed to the Superior Court. The court dismissed the appeal on the ground that the plaintiffs lacked standing, and the owners and the plaintiffs then appealed to this court. We reversed the trial court’s judgment in part and remanded the case to that court for a decision on the merits. ... In 1998, the trial court sustained the plaintiffs’ appeal on the ground that the record was devoid of evidence ‘to support the board’s conclusion that the plaintiffs’ furniture is not the “fine furniture” contemplated by the [Amatulli] variance.’ . . . The board did not appeal from that decision.

“In July, 1995, while their appeal on their first site plan application was pending in the trial court, the plaintiffs filed a second site plan application, this time for the sale of oriental rugs, fine furniture and art. During the course of the application process, the plaintiffs assured the planning director that they would limit their retail furniture sales to goods that would comply with the Amatulli variance and that they would not sell plastic or mass produced furniture. The first site plan appeal was still pending when, in August, 1995, the planning director approved the plaintiffs’ second site plan application. The site plan approval was subject to the condition that ‘the limited retail sales will be exactly as permitted and described in the grant of [the Amatulli variance] and further defined in [the board’s memorandum of decision denying the first application for site plan approval].’ . . .

“Four months later, and three months after the plaintiffs began selling furniture on the property, the Ridge-field zoning enforcement officer issued a cease and desist order on the ground that the plaintiffs’ sales were not permitted under the Amatulli variance and violated the conditions of their site plan approval. The plaintiffs appealed to the board, and the board sustained the zoning enforcement officer’s order. In so doing, the board determined that the plaintiffs were in violation of the zoning variance that applied to their property because they ‘applied for [s]ite [p]lan [a]pproval for one use . . . and after receiving it . . . put the property to another use.’ . . . Specifically, the board noted that the plaintiffs’ site plan application ‘had been approved for the sale of oriental rugs, fine furniture and art . . . [and] concluded that [t]he outdoor furniture . . . offered for sale at [the plaintiffs’ property] does not meet the aforementioned criteria.’ . . .

“The plaintiffs appealed to the Superior Court claiming, inter alia, that the term ‘fine furniture’ was vague and that their rights to due process were violated because they were not told what items of furniture that term did not include. The court heard that appeal at the same time that it heard, on remand, the plaintiffs’ appeal from the denial of their first site plan application. In addition to sustaining the plaintiffs’ appeal in the first site plan case, as previously detailed, the court dismissed their appeal from the board’s decision to sustain the cease and desist order related to the second site plan. In the latter case, the court decided that ‘the board’s reason for sustaining the order . . . was reasonably supported by the record.’ . . . The plaintiffs appealed from that decision.

“We reversed the court’s judgment on the basis of the doctrine of collateral estoppel. After the granting of certification, the board appealed to the Supreme Court on the ground that collateral estoppel did not apply because in the trial court’s decision in the first site plan case, the court did not determine the definition of the term ‘fine furniture’ as used in the Amatulli variance. Our Supreme Court agreed with the board’s argument, stating that ‘the meaning of fine furniture as used in the Amatulli variance was neither litigated by the parties nor decided by the trial court in the site plan case. Therefore, the trial court did not render final judgment on an issue that would preclude the board, under the doctrine of collateral estoppel, 1'rom ensuring in the cease and desist case that the plaintiffs’ actual use complied with its site plan application to sell fine furniture.’ . . . Accordingly, the Supreme Court reversed the judgment and remanded the case to this court with direction to affirm the judgment of the trial court.” (Citations omitted.) Id., 3-6.

R & R Pool & Patio, Inc. v. Zoning Board of Appeals, supra, 83 Conn. App. 1, involved, inter alia, a different aspect of the Amatulli variance, specifically, “whether it allows the plaintiffs to use the exterior of the property for outdoor displays and storage. On December 23, 1998, the plaintiffs filed a third application for site plan approval for specific areas of outdoor displays in which they intended to display a different line of products for sale, i.e., ‘[fjurniture and furnishings, including the customary related accessories such as cushions, umbrellas, and tableware related to furniture in stock. . . . Spas, hot tubs and pool accessories. . . . Billiard and gaming tables and accessories. . . . Fireplace equipment and grills. . . . Works of art. . . . Christmas and seasonal holiday products.’ The planning director denied the application on February 17, 1999. The plaintiffs appealed and, on July 19, 1999, the board upheld the planning director’s decision. The plaintiffs appealed to the Superior Court on numerous grounds. On August 9, 2002, the court sustained the appeal on the ground that there was no substantial evidence indicating that the variance did not include outdoor displays, and because the plaintiffs’ proposed use of the property did not constitute a change from Amatulli’s use and, thus, they were not required to file a new site plan application. The court reversed the board’s decision and directed the board to sustain the plaintiffs’ application.” Id., 6-7.

On March 19, 2003, this court granted the board’s petition for certification to appeal. We determined that “[b]y directing the board to grant the plaintiffs’ application, the court’s reversal of the board’s decision prohibiting outdoor displays had the effect of tacitly approving the sale of specific items that were not permitted under the terms of the variance. Thus, the court’s unqualified order directing the board to grant the plaintiffs’ site plan application is not consistent with the Supreme Court’s ruling [in R & R Pool & Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 778 A.2d 61 (2001)] and, accordingly, is overbroad.” R & R Pool & Patio, Inc. v. Zoning Board of Appeals, supra, 83 Conn. App. 8. We thus concluded that “once the court decided to reverse the board’s decision, it should have gone no further than to sustain the plaintiffs’ appeal.” Id., 9. We reversed the judgment of the court only as to its order directing the board to grant the plaintiffs’ application for site plan approval and remanded the case to the court to remand the case to the board “for further proceedings on the issue of whether the sale of specific items listed in the application is permitted under the AmatuUi variance.” Id. Our Supreme Court denied the plaintiffs’ petition for certification for appeal from that decision. See R & R Pool & Patio, Inc. v. Zoning Board of Appeals, 271 Conn. 921, 859 A.2d 580 (2004).

On March 11, 2005, the board filed a motion for an order implementing the remand order of this court. The trial court granted the motion and remanded the case to the board on April 4, 2005. On September 15, 2005, the plaintiffs, through their attorney, filed a letter stating that the statutory time period to review the application had expired and that they were due automatic approval of their site plan application. By letter dated September 16, 2005, the board informed the plaintiffs that the site plan application would be addressed at the board’s October 19, 2005 meeting. The plaintiffs filed a complaint on October 5, 2005, requesting that the trial court grant a writ of mandamus directing the board to issue a certificate of approval. On November 25, 2005, the board filed a motion to strike the plaintiffs’ complaint, which was granted by the court on February 22, 2006. This appeal followed.

The plaintiffs claim that where a zoning board of appeals is the agency reviewing a site plan application, and the board does not decide whether to approve the site plan application within the time limits delineated in §§ 8-7d (b) and 8-3 (g), the applicant is entitled to an automatic approval. They claim, therefore, that the court’s granting of the board’s motion to strike the mandamus complaint was improper. We disagree.

“The standard of review in an appeal challenging a trial court’s granting of a motion to strike is well established. A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court’s ruling is plenary. . . . We take the facts to be those alleged in the [pleading] that has been stricken and we construe the [pleading] in the manner most favorable to sustaining its legal sufficiency.” (Internal quotation marks omitted.) AvalonBay Communities, Inc. v. Zoning Commission, 280 Conn. 405, 412, 908 A.2d 1033 (2006).

The dispositive issue in this appeal is whether a zoning board of appeals is bound by the statutory time constraints of § 8-7d (b), which provides in relevant part that “whenever the approval of a site plan is the only requirement to be met or remaining to be met under the zoning regulations for any building, use or structure, a decision on an application for approval of such site plan shall be rendered within sixty-five days after receipt of such site plan. ...” General Statutes § 8-7d (b). Section 8-3 (g) further addresses the time limitation by providing that “[a]pproval of a site plan shall be presumed unless a decision to deny or modify it is rendered within the period specified in section 8-7d. . . .” General Statutes § 8-3 (g).

The court issued an order granting the board’s motion to strike the plaintiffs’ complaint, applying the reasoning of Leo Fedus & Sons Construction Co. v. Zoning Board of Appeals, 225 Conn. 432, 623 A.2d 1007 (1993). In that case, our Supreme Court addressed whether “the ‘automatic approval’ doctrine applicable to a zoning commission that fails to issue timely decisions on site plan or subdivision applications under General Statutes §§ 8-3 (g) and 8-26, also [applies] to a zoning board of appeals that fails to hold a hearing on an appeal under General Statutes § 8-7d (a) (Internal quotation marks omitted.) Leo Fedus & Sons Construction Co. v. Zoning Board of Appeals, supra, 436. The plaintiffs in that case submitted an application for a site plan approval for the construction of an asphalt plant on their property in Colchester. Id., 434-35. The planning and zoning commission held a public hearing and ultimately denied the application. Id., 435. The plaintiffs then filed an application with the zoning board of appeals, “appealing from the denial of [their] site plan application by the [planning and zoning] commission.” Id. Shortly after the appeal was filed, the planning and zoning commission determined that asphalt plants were no longer allowed in Colchester, and, after originally having arranged for a public hearing, the zoning board of appeals canceled the hearing because it believed that it no longer had jurisdiction to act on the appeal. Id. The trial court granted the plaintiffs a writ of mandamus “to compel the [zoning board of appeals] to issue a certificate approving their site plan application and be ordered to sustain the appeal filed with it by the plaintiffs.” Id., 436. This court “agreed with the trial court that the time requirements of § 8-7d (a) could be satisfied only by the commencement of a public hearing within sixty-five days after the receipt by the [zoning board of appeals] of the plaintiffs’ appeal and that the failure of the defendant [zoning board of appeals] to hold such a hearing resulted in the automatic approval of the plaintiffs’ site plan application . . . .” Id., 437.

Our Supreme Court reversed that decision. Id., 446. In so doing, it reviewed its earlier decision of Vartuli v. Sotire, 192 Conn. 353, 472 A.2d 336 (1984), in which the failure of a zoning commission to act within the time constraints of § 8-7d (b) resulted in automatic approval of an application for a coastal management act site plan. Because § 8-7d (b) “contained language requiring the applicant’s consent for an extension of the statutory time period . . . [the Supreme Court] reasoned in that case that the language . . . permitted the inference that the time constraints in the statute were mandatory.” Leo Fedus & Sons Construction Co. v. Zoning Board of Appeals, supra, 225 Conn. 441. In its analysis of statutory construction, however, the court determined that “[b]ecause §§ 8-3 (g) and 8-26 expressly provide for the automatic approval of applications when a zoning commission or planning commission do not act within prescribed time periods, it can be inferred that had the legislature intended that the failure of a zoning board of appeals to hold a hearing within sixty-five days results in automatic approval, the legislature would have so provided. . . . Moreover, if a mandate for automatic approval is to be inferred from the consent language in § 8-7d (a), that construction would render the specific automatic approval language in §§ 8-3 (g) and 8-26 mere surplusage and such an interpretation has been proscribed by this court.” (Citation omitted; internal quotation marks omitted.) Id., 442. The court concluded that “[z]oning boards of appeals do not perform the same functions as zoning commissions. . . . The board’s appellate function is not advanced by the substitution of an automatic approval for a decision of an appeal on its merits. . . . [W]e conclude that a zoning board of appeals is not subject to the automatic approval doctrine because it fails to hold a public hearing within the time limits contained in § 8-7d (a).” (Citation omitted.) Id., 445-46.

We find unavailing the plaintiffs’ contention that because Leo Fedus & Sons Construction Co. involved subsection (a) and not subsection (b) of § 8-7d, the holding is not controlling under the facts of this case. Despite the plaintiffs’ efforts to distinguish the two subsections, we conclude that in this case, the comparison consists of a distinction without a difference. Subsection (a) of § 8-7d involves “all matters wherein a formal petition, application, request or appeal must be submitted to [one of the specified agencies], and a hearing is required or otherwise held . . . .” (Emphasis added.) General Statutes § 8-7d (a). In contrast, subsection (b) applies “whenever the approval of a site plan is the only requirement to be met or remaining to be met”; General Statutes § 8-7d (b); that is, when no hearing is required. Both subsections include language that the operative time period in which to act is within sixty-l'ive days. Only § 8-3 (g) contains automatic approval language; it refers to the time limitations of § 8-7d without specifying whether it refers to subsection (a) or (b). Our Supreme Court explicitly held that because the automatic approval language of § 8-3 (g) expressly addresses a zoning commission or planning commission, “it can be inferred that had the legislature intended that the failure of a zoning board of appeals to hold a hearing within sixty-five days results in automatic approval, the legislature would have so provided.” Leo Fedus & Sons Construction Co. v. Zoning Board of Appeals, supra, 225 Conn. 442. Therefore, automatic approval under either subsection (a) or subsection (b) of § 8-7d, as applied by § 8-3 (g), is not applicable to a zoning board of appeals.

Additionally, the plaintiffs claim that because the case was remanded, the board “was not deciding a variance or an appeal from the [z]oning [e]nforcement [ojfficer, but rather making an independent determination on whether certain categories of furniture were permitted to be sold under the third site plan based upon a variance previously approved by the [bjoard.” Inapposite are the cases the plaintiffs cite for the proposition that all agencies to which a case is remanded, that merely have to make an independent determination, are required to make a decision within sixty-five days. See Gervasi v. Town Plan & Zoning Commission, 184 Conn. 450, 440 A.2d 163 (1981); Marandino v. Planning & Zoning Commission, 21 Conn. App. 421, 573 A.2d 768 (1990). Those cases involved a remand order to a commission rather than a zoning board of appeals, and they were thus bound by the sixty-five day requirement to decide, the failure of which resulted in an automatic approval under § 8-26. The plaintiffs claim that the board was acting in a different capacity because it merely had to decide whether the site plan application fell within the Amatulli variance. Our Supreme Court clearly has stated, however, that a zoning board of appeals is not subject to automatic approval; see Leo Fedus & Sons Construction Co. v. Zoning Board of Appeals, supra, 225 Conn. 446; and we decline to apply gradations on the basis of the board’s proposed function.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 8-7d (b) provides in relevant part: “Notwithstanding the provisions of subsection (a) of this section, whenever the approval of a site plan is the only requirement to be met or remaining to be met under the zoning regulations for any building, use or structure, a decision on an application for approval of such site plan shall be rendered within sixty-five days after receipt of such site plan. . . .”

       General Statutes § 8-3 (g) provides in relevant part: “Approval of a site plan shall be presumed unless a decision to deny or modify it is rendered within the period specified in section 8-7d. A certificate of approval of any plan for which the period for approval has expired and on which no action has been taken shall be sent to the applicant within fifteen days of the date on which the period for approval has expired. ...”

       The meeting was held as scheduled, and the board did not approve the items that the plaintiffs proposed to sell. In addition to the present appeal, the plaintiffs filed an administrative appeal from the denial of the site plan application on November 3, 2005, in order “to protect their rights . . . .” That appeal was scheduled for a hearing on May 21, 2007. See R & R Pool & Patio, Inc. v. Zoning Board of Appeals, Superior Court, judicial district of Danbury, Docket No. CV-05-4004560-S.

       We agree with the plaintiffs that § 8-7d (b) is the statute applicable to the court’s remand to the board in this case. “Section 8-7d (a) sets the time constraints for the rendering of decisions on zoning applications in which a public hearing is required. ... If no public hearing is required, the time constraints of subsection (b), rather than those of subsection (a), control.” October Twenty-Four, Inc. v. Planning & Zoning Commission, 35 Conn. App. 599, 601-602, 646 A.2d 926 (1994). Because no public hearing was required “for further proceedings on the issue of whether the sale of specific items listed in the application is permitted under the Amatulli variance”; R & R Pool & Patio, Inc. v. Zoning Board of Appeals, supra, 83 Conn. App. 9; § 8-7d (b) controls.

       General Statutes § 8-2G requires a planning commission to “approve, modify and approve, or disapprove any subdivision or resubdivision application” within the time limits in § 8-26d. (Emphasis added.) General Statutes § 8-26d provides, in turn, that “all public hearings shall be held and all decisions made in accordance with the provisions of section 8-7d.”

       In a footnote, the court stated that Vartuli v. Sotire, supra, 192 Conn. 353, was “restricted to its facts, i.e., a site plan application to a zoning commission. . . . Both Vartuli and Carr v. Woolwich, 7 Conn. App. 684, 510 A.2d 1358, cert. denied, 201 Conn. 804, 513 A.2d 698 (1986), to the extent that they are inconsistent with this opinion only, are overruled.” Leo Fedus & Sons Construction Co. v. Zoning Board of Appeals, supra, 225 Conn. 446 n.7.

       The plaintiffs further note that No. 06-20 of the 2006 Public Acts added the following language to § 8-3 (g): “The provisions of this subsection shall apply to all zoning commissions or other final zoning authority of each municipality whether or not such municipality has adopted the provisions of this chapter or the charter of such municipality or special act establishing zoning in the municipality contains similar provisions.” Public Acts 2006, No. 06-20, § 1. They aver that the amendment evidences “[t]he intent [of the legislature] to allow site plan review by a zoning board of appeals, in addition to the zoning commission or other agencies or officials . . . .” Considering the date of the adoption of the public act, May 2, 2006, we decline the plaintiffs’ invitation to speculate as to the legislature’s intent. See General Statutes § l-2z.