text:
    SELENE FINANCE, L.P. v. JOHN TORNATORE ET AL.
    (AC 32780)
    DiPentima, C. J., and Espinosa and Bishop, Js.

      Argued April 24 —
    officially released July 24, 2012

      Kimberly A. Cuneo, with whom, on the brief, was J. WiUiam Gagne, Jr., for the appellant (named defendant).

      Andrew P. Barsom, for the appellee (plaintiff).
   Opinion

PER CURIAM.

The mortgagor defendant, John Toma-tore, appeals from the judgment of the trial court denying his motion to open the default judgment of strict foreclosure in favor of the mortgagee plaintiff, Selene Finance, L.P. The defendant claims that the court improperly denied his motion to open and awarded attorney’s fees to the plaintiff. We affirm the judgment of the trial court.

The following undisputed facts are relevant to this appeal. The plaintiff is the holder of a mortgage and note on the defendant’s property located on Casey Lane in Wethersfield (property). The note entered default, and the plaintiff accelerated the amount due and declared the note due. When the defendant faded to cure the default, the plaintiff initiated foreclosure proceedings on the mortgage securing the note. The marshal left a true and attested verified copy of the notice, summons and complaint at the property.

On April 20, 2010, the plaintiff filed a motion for default for failure to appear and a motion for judgment of strict foreclosure. The court granted both motions. The defendant failed to redeem the property, and the plaintiff filed a motion for deficiency judgment against the defendant on August 27, 2010.

On September 30, 2010, the defendant filed a motion to open the judgment of strict foreclosure. By way of two separate affidavits in support of the motion, the defendant claimed that he was not served with the complaint and did not receive notice of the motion for default or the motion for judgment of strict foreclosure. The motion to open appeared on the short calendar for October 12, 2010, and was marked “ready” for argument. Counsel for the plaintiff appeared and objected to the motion, arguing that title to the property had vested in the plaintiff. Counsel for the defendant did not attend. The court denied the motion and awarded the plaintiff $150 in attorney’s fees. The defendant filed the present appeal on October 18, 2010.

The court issued an articulation on September 13, 2011. Citing General Statutes § 49-15 (a) (1) and (2), the court stated that title to the property had vested in the plaintiff and that the plaintiff properly had objected to the motion to open. Furthermore, the court stated that it awarded the plaintiff attorney’s fees because counsel for the defendant did not appear to prosecute the motion.

The defendant claims that the court abused its discretion in denying his motion to open the judgment of strict foreclosure and in awarding the plaintiff attorney’s fees. He argues that he did not have proper notice of the foreclosure proceedings. We are not persuaded.

“[A] judgment of strict foreclosure ordinarily cannot be opened after the law day has passed, [unless] the judgment [is] attacked on the ground that the court lacked jurisdiction over the party challenging it. . . . Once title has vested, no practical relief is available [pjrovided that this vesting has occurred pursuant to an authorized exercise of jurisdiction by the trial court . . . .” (Citation omitted; internal quotation marks omitted.) Highgate Condominium Assn., Inc. v. Miller, 129 Conn. App. 429, 434-35, 21 A.3d 853 (2011).

At the hearing on the defendant’s motion to open, the defendant did not claim that title to the property had not vested in the plaintiff or that the abode service of the summons and complaint was somehow improper. Nevertheless, the defendant now improperly attempts to make these claims on appeal. We decline to consider them. Under these circumstances, and in accord with § 49-15 (a) (2), the court could grant the defendant’s motion to open only upon the agreement of the parties. Since there was no assertion that the parties had come to any such agreement, and the record reflects that there was no such agreement, the court properly denied the defendant’s motion to open.

The defendant’s claim that the court’s award of attorney’s fees was improper is without merit. “[W]e review the trial court’s decision to award attorney’s fees for abuse of discretion. . . . Under the abuse of discretion standard of review, [w]e will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Internal quotation marks omitted.) Noel v. Ribbits, LLC, 132 Conn. App. 531, 534-35, 35 A.3d 1078 (2011). After reviewing the record, we conclude that the court’s award of attorney’s fees to the plaintiff was reasonable and not an abuse of its discretion.

The judgment is affirmed.

       The summons and complaint also named as a defendant Montgomery Wholesale Florist, Inc. Montgomery Wholesale Florist, Inc., is not a party to this appeal. Accordingly, in this opinion, we refer to Tomatore as the defendant.

       General Statutes § 49-15 (a) provides in relevant part: “(1) Any judgment foreclosing the title to real estate by strict foreclosure may, at the discretion of the court rendering the judgment, upon the written motion of any person having an interest in the judgment and for cause shown, be opened and modified, notwithstanding the limitation imposed by section 52-212a, upon such terms as to costs as the court deems reasonable, provided no such judgment shall be opened after the title has become absolute in any encum-brancer except as provided in subdivision (2) of this subsection.
      “(2) Any judgment foreclosing the title to real estate by strict foreclosure may be opened after title has become absolute in any encumbrancer upon agreement of each party to the foreclosure action who filed an appearance in the action and any person who acquired an interest in the real estate aftertitle became absolute in any encumbrancer, provided (A) such judgment may not be opened more than four months after the date such judgment was entered or more than thirty days after title became absolute in any encumbrancer, whichever is later, and (B) the rights and interests of each party, regardless of whether the party filed an appearance in the action, and any person who acquired an interest in the real estate after title became absolute in any encumbrancer, are restored to the status that existed on the date the judgment was entered.” (Emphasis added.)

       The defendant malees these claims for the first time in his reply brief to this court. “[C]laims . . . are unreviewable when raised for the first time in a reply brief. . . . One rationale for that maxim is the fact that [arguments first presented in a reply brief impair the opposing party’s opportunity to reply in writing.” (Citation omitted; internal quotation marks omitted.) McDonough v. Forrest, 129 Conn. App. 851, 856 n.3, 21 A.3d 546, cert. denied, 302 Conn. 924, 28 A.3d 340 (2011). Accordingly, we decline to review these claims.


source: Caselaw Access Project

author: ESPINOSA, J.

license: Public Domain

text:
    DAVID TAYLOR v. COMMISSIONER OF CORRECTION
    (AC 33283)
    Gruendel, Espinosa and West, Js.
    Argued March 12 —
    officially released July 24, 2012

      David Taylor, pro se, the appellant (plaintiff).

      Steven R. Strom, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (state).
   Opinion

ESPINOSA, J.

The plaintiff, David Taylor, who presently is incarcerated in this state, appeals from the judgment of the trial court dismissing his petition for a declaratory judgment ordering that the defendant, the commissioner of correction, grant the plaintiffs request to serve the remainder of his prison sentence in the United Kingdom. The plaintiff claims that the court improperly determined that he was not aggrieved by the defendant’s decision not to grant his request for a transfer to the United Kingdom and therefore lacked standing to bring the present action. We affirm the judgment of the trial court.

The following undisputed facts are relevant to our consideration of this appeal. The plaintiff, a citizen of the United Kingdom, presently is serving a mandatory minimum twenty-five year sentence in connection with his conviction for the murder of his girlfriend. He is incarcerated in this state. Since 2001, the plaintiff has made several requests to the defendant for a transfer to the United Kingdom. The plaintiff made his latest request in 2007. The defendant denied this request in a letter dated April 30, 2009, citing as the grounds for its denial the seriousness of the crime of which the plaintiff was convicted, the length of the plaintiffs sentence, the time remaining on the plaintiffs sentence, the disparity between the administration of the plaintiffs sentence in Connecticut and the United Kingdom and the potential impact that granting the request would have on the victim’s family.

On April 13, 2010, the plaintiff filed his complaint requesting a declaratory judgment ordering that the defendant transfer him to serve the remainder of his sentence in the United Kingdom. Citing General Statutes § 18-91a, 18 U.S.C. § 4100 et seq. and the Convention on the Transfer of Sentenced Persons, March 21, 1983,35 U.S.T. 2867,1496 U.N.T.S. 92 (treaty), the plaintiff asserted that the defendant had imposed arbitrary conditions on his transfer in violation of state, federal and international law.

On May 14, 2010, the defendant filed a motion to dismiss. The defendant argued that the plaintiff had failed to allege a violation of any right guaranteed to him by state or federal law. On February 10, 2011, the court granted the defendant’s motion. The court determined that the plaintiff was not legally injured or aggrieved by the defendant’s decision not to transfer him to the United Kingdom and, accordingly, it held that he lacked standing to maintain the action. The plaintiff filed the present appeal on March 21, 2011.

The plaintiff claims that the court improperly determined that he was not aggrieved by the defendant’s decision not to grant his request for a transfer and therefore lacked standing to bring the present action. He argues that he is both classically and statutorily aggrieved in that he has a personal and protectable interest in being transferred to his country of citizenship. Although § 18-9 la provides that the defendant “may” consent to the international transfer of a prisoner, the plaintiff maintains that the statute does not confer on the defendant unlimited discretion to grant or to deny requests for such transfers. He argues that the legislative history of § 18-9 la reveals that the legislature intended to comply fully with the terms of the treaty and that the defendant’s refusal to grant his transfer is inconsistent with the treaty and, by extension, the legislative intent underlying § 18-91a. We are not persuaded.

“[Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented. . . . Two broad yet distinct categories of aggrievement exist, classical and statutory. . . . Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share. . . . Second, the party must also show that the [party’s] decision has specially and injuriously affected that specific personal or legal interest. . . . Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected interest. . . . Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation. . . . Where a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause. . . . We have long held that because [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary.” (Citations omitted; internal quotation marks omitted.) Canty v. Otto, 304 Conn. 546, 556-57, 41 A.3d 280 (2012).

Section 18-91a (a) provides: “If a treaty between the United States and a foreign country provides for the transfer or exchange of convicted offenders to the country of which they are citizens or nationals, the Commissioner of Correction may, on behalf of the state and subject to the terms of the treaty, consent to the transfer or exchange of offenders and take any other action necessary to initiate the participation of the state in the treaty. No offender shall be transferred or exchanged under this section unless he consents to such transfer or exchange.”

We agree with the court that the plaintiff has failed to demonstrate that he was aggrieved by the defendant’s decision to deny his request for a transfer and that, accordingly, the plaintiff lacked standing to bring the present action. First, we conclude that the plaintiff has failed to demonstrate that he was statutorily aggrieved by the defendant’s decision. “In order to determine whether a party has standing to make a claim under a statute, a court must determine the interests and the parties that the statute was designed to protect. . . . Essentially the standing question in such cases is whether the . . . statutory provision on which the claim rests properly can be understood as granting persons in the plaintiffs position a right to judicial relief.” (Internal quotation marks omitted.) McWeeny v. Hartford, 287 Conn. 56, 65, 946 A.2d 862 (2008). Accordingly, whether § 18-91a provides for statutory aggrievement is a question of statutory interpretation. “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case.” (Internal quotation marks omitted.) Brouillard v. Connecticut Siting Council, 133 Conn. App. 851, 855, 38 A.3d 174, cert. denied, 304 Conn. 923, 41 A.3d 662 (2012). General Statutes § l-2z provides: “The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extra-textual evidence of the meaning of the statute shall not be considered.”

On the basis of the clear and unambiguous language of the statute, we conclude that § 18-9 la does not confer standing on the plaintiff on the basis of statutory aggrievement. Section 18-91a does not provide for judicial review of the defendant’s decision not to grant the plaintiffs request to be transferred. There is no language within the statute that could be construed as granting persons in the plaintiffs position a right to judicial relief. Accordingly, the plaintiff has failed to demonstrate statutory aggrievement. Therefore, to have standing, the plaintiff must demonstrate classical aggrievement.

We conclude that the plaintiff has failed to demonstrate that he was classically aggrieved. As the court found, the plaintiff has not identified any legally protected interest that the defendant’s decision has specially and injuriously affected. See Brouillard v. Connecticut Siting Council, supra, 133 Conn. App. 854. The plaintiff asserts that § 18-91a recognizes that he has such an interest in being transferred to the United Kingdom and that the defendant’s refusal to allow for this transfer has caused him injury. We are not persuaded. Our Supreme Court has noted that there is no constitutional right to a transfer or to serve a prison sentence in any particular location. See Asherman v. Meachum, 213 Conn. 38, 47, 566 A.2d 663 (1989) (“a prisoner’s transfer from one place of confinement to another does not infringe or implicate a constitutionally protected liberty interest”). Section 18-91a plainly does not establish such a right, vesting in the defendant the discretion to decide whether to grant a transfer. The plaintiff fails to demonstrate how his personal feeling of aggrievement at being denied a transfer rises to the level of aggrievement of a legally protected interest. See Albuquerque v. State Employees Retirement Commission, 124 Conn. App. 866, 876 n.8, 10 A.3d 38 (2010), cert. denied, 299 Conn. 924, 11 A.3d 150 (2011). Accordingly, because the plaintiff has failed to identify a legally protected interest that has been specially and injuriously affected, we conclude that he lacks standing to bring the present action.

The judgment is affirmed.

In this opinion the other judges concurred.

       The facts underlying the plaintiffs criminal conviction are set forth fully in this court’s opinion in Taylor v. Commissioner of Correction, 94 Conn. App. 772, 775-76, 895 A.2d 246 (2006), rev’d in part, 284 Conn. 433, 936 A.2d 611 (2007).

       Additionally, the defendant alleged that the plaintiffs action was barred by the doctrine of sovereign immunity. Although the defendant renews this argument on appeal, we need not reach it in light of our conclusion that the court’s dismissal of the action on standing grounds was proper.

       The plaintiff does not argue that the treaty itself affords him such an interest. Rather, the plaintiff discusses the treaty as a part of his review of the legislative history underlying the enactment of § 18-91a. His claim is based on the rights afforded by § 18-91a.

       Citing State ex rel. Markley v. Bartlett, 130 Conn. 88, 32 A.2d 58 (1943), the plaintiff argues that the word “may” in § 18-91a should be construed to mean “shall.” We disagree. “[A]s opposed to [d]efinitive words, such as must or shall, [which] ordinarily express legislative mandates of a nondirectory nature . . . the word may imports permissive conduct and the conferral of discretion. . . . Only when the context of legislation permits such interpretation and if the interpretation is necessary to make a legislative enactment effective to carry out its purposes, should the word may be interpreted as mandatory rather than directory.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Bletsch, 281 Conn. 5, 17-18, 912 A.2d 992 (2007). Having determined that the text of the statute is clear and unambiguous, we conclude that the word “may” in § 18-91a should not be interpreted as being mandatory rather than permissive in nature. See General Statutes § l-2z.


author: DiPENTIMA, C. J.

text:
    JOANNE JACOBSON v. ZONING BOARD OF APPEALS OF THE TOWN OF WASHINGTON ET AL.
    (AC 32877)
    DiPentima, C. J., and Beach and Borden, Js.
    Argued March 13 —
    officially released July 31, 2012

      Robert H. Hall, for the appellant (plaintiff).

      Michael A. Zizka, with whom were Michael C. Mar-kowicz and, on the brief, Kari L. Olson, for the appellee (named defendant).

      Gail E. McTaggart, for the appellee (defendant Zemma Mastín White).
   Opinion

DiPENTIMA, C. J.

General Statutes § 51-183b “requires a court to render a judgment within 120 days of the completion of trial, but also allows the parties to waive that requirement.” Ridgefield v. Eppoliti Realty Co., 71 Conn. App. 321, 341, 801 A.2d 902, cert. denied, 261 Conn. 933, 806 A.2d 1070 (2002). The dispos-itive issue in the present case is whether the trial court properly found that the plaintiff, Joanne Jacobson, implicitly waived the 120 day requirement of § 51-183b. We conclude that, under the facts and circumstances of this case, the court’s finding of waiver was clearly erroneous, and, therefore, we reverse the judgment of the trial court.

The following facts and procedural history are necessary for our discussion. In 2006, the defendant Zemma Mastín White applied to the defendant zoning board of appeals of the town of Washington (board) for a variance to construct a garage. The board unanimously granted the variance and the plaintiff, an abutting landowner, appealed from that decision to the Superior Court. At that time, the court remanded the case to the board with instruction to consider the 2006 application without regard to an earlier proceeding in which the board had granted a variance application in 1988 and had not commented on whether it had found a hardship.

In accordance with the remand from the Superior Court, the board conducted a public hearing on October 30, 2008. Afterwards, the board discussed whether a hardship existed due to the small lot size and whether the hardship was self-created. Ultimately, the members of the board concluded that they had found a hardship in 2006 without regard to the 1988 variance and voted unanimously to affirm the 2006 decision, finding that a hardship had not been self-created. The plaintiff then appealed from that decision to the Superior Court.

On November 19, 2009, the court conducted a trial of the plaintiffs appeal from the board’s decision. No briefs were filed after that date, nor were there any further proceedings that would extend the 120 day rule of § 51-183b. In its memorandum of decision issued on May 21, 2010, the court concluded that the 2006 record contained sufficient evidence to support the finding of a hardship and that the hardship was not self-created. Accordingly, the court determined that the board’s decision was reasonable and supported by the evidence. The court dismissed the appeal filed by the plaintiff. This decision was issued 189 days after the conclusion of the proceedings before the court.

On June 7, 2010, approximately two weeks after the court issued its decision, the plaintiff filed a motion to set aside the judgment of the court. She argued that, pursuant to § 51-183b, the court’s decision should have been rendered no later than March 13, 2010. The plaintiffs motion then set forth the following details regarding the timing of the court’s decision: “On or about March 30, 2010, [ajttomey James Strub representing [White] called the [plaintiffs counsel], and the [plaintiffs counsel] and [a]ttomey Strub had a conversation to the effect that the decision of the court was late, that the clerk of the court had suggested consent to a [thirty] day extension, that we both believed [thirty] days was way too short, and that it was the clerk’s belief that the [j]udge would not decide the case unless all parties agreed to be bound by the [cjourt’s decision. . . .

“On or about April 12, 2010, the [plaintiffs counsel] had a conversation with [a]ttomey Gail McTaggart, also representing [White], wherein [the plaintiffs counsel] stated that he would not consent to a late judgment and that he was ‘going to sit and take no position’ on any request for an extension of time. . . . Subsequent to April 12, 2010, the attorneys for both defendants agreed to extend the date for rendering judgment by an additional sixty (60) days, but the [plaintiffs counsel] has never consented or waived the statutory time limit for judgment after trial.” The plaintiff concluded her argument by stating that the court did not render its judgment until May 21, 2010, and that therefore it was sixty-nine days late.

Both White and the board filed an objection to the plaintiffs motion to set aside the judgment of the court. On June 20, 2010, the plaintiff filed an amendment to her motion and attached a copy of a letter from Strub to the clerk of the court. In that letter, dated April 19, 2010, Strub wrote that both White and the board consented to a sixty day extension for the court to issue its decision. The letter also stated: “Both . . . McTag-gart and I have, on separate occasions, discussed the issue with [the plaintiffs counsel]. As of the date of this correspondence, [the plaintiffs counsel] had no position on the extension. I believe [the plaintiffs counsel] has been unable to communicate the request with [the plaintiff].”

On July 16, 2010, the court held a hearing on the plaintiffs motion to set aside the judgment. At this hearing, the plaintiffs counsel stated that the clerk of the court had not communicated with him regarding a waiver of the 120 day rule of § 51-183b; his only communication was with Strub and McTaggart. During a colloquy with the court, the plaintiffs counsel noted that he had spoken with Strub and later with McTaggart. The plaintiffs counsel later clarified his position by acknowledging that he was “going to sit on” the waiver request and not take a position on it. The court then asked him if he understood that the request came from the court, and the plaintiffs counsel indicated that he did. He also agreed with the court’s statement that he had not responded to the court's request for an extension. After further discussion, the plaintiffs counsel set forth his position as follows: “I do not have any duty to object [to the late judgment], Your Honor. I have no duty to object to that — to Your Honor’s late decision— none, zero.” He then reiterated that he had not spoken with the clerk regarding a request for an extension and that everything had been “through either Attorney Strub or Attorney McTaggart.”

In reaching the decision to deny the plaintiffs motion to set aside the verdict, the court stated: “I’m denying your motion, and the reason I am doing that, is because — and I want you to be really clear on this— because I have a feeling that you are going to take this up. I don’t think this is going — this case has been going on so long. But I want to make it — make it clear that it was your conduct, counsel, prior to the rendering of the judgment. You know, when you say, I will take no position, you leave the court without the possibility of, you know, the court has to just keep going, and that conduct, I believe, constituted a waiver. So, for that reason, I’m denying your motion . . . .” This appeal followed.

We begin our analysis with a discussion of Waterman v. United Caribbean, Inc., 215 Conn. 688, 577 A.2d 1047 (1990), the seminal case interpreting § 51-183b. In that case, our Supreme Court observed that “in order to reduce delay and its attendant costs, [§ 51-183b] imposes time limits on the power of a trial judge to render judgment in a civil case.” Id., 691. It also noted that the genesis of this statute may be traced to 1879. Id. The court stated that it had “held that the defect in a late judgment is that it implicates the trial corut’s power to continue to exercise jurisdiction over the parties before it. . . . We have characterized a late judgment as voidable rather than as void . . . and have permitted the lateness of a judgment to be waived by the conduct or the consent of the parties. . . . Thus, if both parties simultaneously expressly consent to a late judgment, either before the judgment is issued, or immediately thereafter, the judgment is valid and binding upon both parties, despite its lateness. Express consent, however, is not required. If a late judgment has been rendered and the parties fail to object seasonably, consent may be implied.” (Citations omitted.) Id., 692.

Our Supreme Court continued its analysis with respect to the issue of waiver. “We have concluded that waiver has validated a judgment voidable under § 51-183b and its predecessors in one of two factual contexts. In the first context, the losing party has promptly sought to set aside an unfavorable judgment, only to be met by the winning party’s claim of waiver by virtue of the losing party’s prejudgment conduct. ... In the second context, the losing party has allowed the defective judgment to stand without objection for an unseasonable period of time and through inaction has enabled the winning party to claim implied consent to the delay that has occurred.” (Citations omitted.) Id., 693.

We now turn to the recent decision from this court in Foote v. Commissioner of Correction, 125 Conn. App. 296, 8 A.3d 524 (2010). In that case, neither party objected prior to a late decision rendered 200 days after the completion of the trial by the habeas court. Id., 299. The petitioner, however, raised an objection nine days after the release of the court’s decision. Id. Applying the principles of Waterman v. United Caribbean, Inc., supra, 215 Conn. 692-93, we set forth the following syllogism: “(1) a late judgment is voidable, not void, (2) a court maintains personal jurisdiction over the parties until and unless they object, (3) but a late judgment may be waived by conduct or consent, (4) therefore, absent waiver, a voidable judgment becomes void upon objection.” Foote v. Commissioner of Correction, supra, 301. We then rejected the argument of the respondent commissioner of correction that the petitioner had waived any objection to the timing of the decision given his silence during the eighty day time period that the judgment was not rendered outside of the § 51-183b time period. Id.

We used the following analysis in support of our conclusion that prejudgment silence alone does not constitute a waiver of the statutory 120 day rule. “[A] waiver is not ordinarily to be inferred from the mere inaction of a party prior to the time the judge files with the clerk his memorandum of decision. . . . Implications from silence or inaction . . . import some duty or occasion to speak or act, and in order to imply consent that rendition of judgment . . . might be deferred beyond the limit of time imposed by statute, there must be found to exist some obligation on the part of the [parties] or their counsel either seasonably to admonish the trial judge that the statute must be complied with or, after the [time limit imposed by statute] and before judgment, to interpose objection to its entry thereafter. We find no justification for so far extending the duty of a party or his counsel. The impracticability, if not the impropriety, of the first course is obvious; as to the second, it seems that the most that can reasonably be required is objection seasonably made after the filing of the decision. . . . Therefore, [u]nless some situation develops which in reason requires the party to protest and he does not protest, or unless he consents to the delay either expressly or impliedly, as by agreeing to an additional hearing or by a tardy filing of his brief, no waiver will be spelled out. ... A review of the case law ... is consistent with such observations concerning waiver. In each of the . . . cases [we reviewed], waiver was not based on silence per se but on some other act or conduct that either delayed the start of the 120 day deadline, created a duty to protest in the silent party or served as an affirmative act of waiver or consent.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 302-303.

Given this precedent, the key question in the present case is whether the prejudgment communication between only the clerk of the court and counsel for White regarding the court’s request for an extension to issue its decision triggered an obligation on the plaintiff to speak or to raise an objection prior to the judgment of the court. We conclude that when a request for an extension of the § 51-183b time period from the court is done in such a manner, no such duty arises.

“Waiver is the intentional relinquishment of a known right. . . . Intention to relinquish [must] appear, but acts and conduct inconsistent with intention [to assert a right] are sufficient. . . . Thus, [w]aiver does not have to be express, but may consist of acts or conduct from which waiver may be implied. ... In other words, waiver may be inferred from the circumstances if it is reasonable to do so. . . . Whether conduct constitutes a waiver is a question of fact. . . . Our review therefore is limited to whether the judgment is clearly erroneous or contrary to law.” (Citations omitted; internal quotation marks omitted.) Id., 302.

In the present case, in order to obtain an extension for the court to issue its decision, the clerk communicated with Strub only. There is no clear record as to the specific period of time requested. See, e.g., Cowles v. Cowles, 71 Conn. App. 24, 25-27, 799 A.2d 1119 (2002). In the motion to set aside the judgment, the plaintiffs counsel alleged that on or about March 30, 2010, he spoke with Strub about a thirty day extension. He further claimed that a second conversation occurred between the plaintiffs counsel and McTaggart approximately two weeks later. The plaintiffs counsel contended that, during this second conversation, he indicated that he would not consent and intended to “sit and take no position.” Strub subsequently sent a letter dated April 19, 2010, to the clerk indicating that White and the board, acting though its counsel, had agreed to a sixty day extension. The letter further stated that the plaintiffs counsel had taken no position. The court found that the conduct of the plaintiffs counsel, in refusing to take a position on the communication from the court via opposing counsel, constituted a waiver.

As noted previously, waiver is the intentional relinquishment of a known right. See Foote v. Commissioner of Correction, supra, 125 Conn. App. 302. In this case, the court made its request for an extension of the 120 day rule through a single party, who then orally communicated that request to the other parties in the case. Although the plaintiff acknowledged, via the motion to set aside the judgment and her counsel's statements during the hearing, that she was aware that some additional time had been requested by the court, the record does not establish any specific facts as to that request. We are not persuaded that such a vague and indefinite communication triggered an obligation for the plaintiff to respond. See, e.g., id., 305-307 (prejudgment silence while under no duty to speak does not amount to waiver). We also note that the procedures used here present a high risk of miscommunication, thereby complicating findings of waiver under § 51-183b.

We need not set forth the exact procedure that the trial court must employ when seeking an extension from the 120 day requirement of § 51-183b. For the purpose of deciding this appeal, it is sufficient to hold that when such a request is made by the court to only one party, the opposing party does not assume a duty to object to or to protest the late judgment. Our holding follows the rationale behind the rule described in Foote. Accordingly, because the court’s finding of waiver was based solely on the prejudgment refusal to respond to the request made by the court through a single party, we conclude that the court’s finding was clearly erroneous. Because of the erroneous finding of waiver, a fortiori, we also conclude that the court improperly denied the plaintiffs motion to set aside the judgment. See id., 307; Cowles v. Cowles, supra, 71 Conn. App. 26-27. Following the seasonable postjudgment objection, the plaintiff turned the voidable judgment into a void judgment. A new trial is required.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       General Statutes § 51-183b provides: “Any judge of the Superior Court and any judge trial referee who has the power to render judgment, who has commenced the trial of any civil cause, shall have power to continue such trial and shall render judgment not later than one hundred and twenty days from the completion date of the trial of such civil cause. The parties may waive the provisions of this section.”

       “In light of [General Statutes] § 8-6, it has been held that [p]roof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance.” (Internal quotation marks omitted.) Michler v. Planning & Zoning Board of Appeals, 123 Conn. App. 182, 186, 1 A.3d 1116 (2010).

       Although not directly before us, we are troubled by the position taken by the plaintiffs counsel that a party is never required to respond to a court’s request for a waiver under § 51-183b. When such a request properly is presented to parties who are subject to the court’s jurisdiction, they should not be allowed to put the court in an untenable position by refusing to accept or to reject the corut’s request until the rendering of judgment. See Wasko v. Farley, 108 Conn. App. 156, 166, 947 A.2d 978 (“Our Supreme Court has criticized the practice whereby an attorney, cognizant of circumstances giving rise to an objection before or during trial, waits until after an unfavorable judgment to raise the issue. We have made it clear that we will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial.” [Internal quotation marks omitted.]), cert. denied, 289 Conn. 922, 958 A.2d 155 (2008). Our decision today should not be read to endorse or countenance such tactics. The more appropriate course of action is for counsel to respond to the court’s request, either by explicitly agreeing to or denying the request.


author: SHELDON, J.

text:
    STATE OF CONNECTICUT v. JOHN O.

    (AC 32782)
    Beach, Sheldon and Peters, Js.

      Argued April 11 —
    officially released July 31, 2012

      Alan Jay Black, for the appellant (defendant).

      RoccoA. Chiarenza, deputy assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Michael W. Riley, senior assistant state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to identify the victims or others through whom the victims’ identities may be ascertained. See General Statutes § 54-86e.

   Opinion

SHELDON, J.

The defendant, John O., appeals from the judgment of conviction, rendered following a jury trial, of one count of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A) and one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). On appeal, the defendant claims that: (1) the trial court erred in denying his motion for a judgment of acquittal on both counts of the information; (2) the trial court erred in determining, after an in camera review, that certain records of the department of children and families (department) did not contain exculpatory information; and (3) § 53-21 (a) (2) is unconstitutionally vague, as applied to this case, and thus violates the defendant’s due process rights under the fifth and fourteenth amendments to the United States constitution. We disagree, and thus affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant and the victim’s mother had a platonic relationship for many years. The defendant, a taxicab driver, would frequently drive the victim’s mother to the local methadone clinic for her appointments. While the victim’s mother attended her appointments, the defendant would wait in the car with her two children — a three year old daughter, the victim, and a five year old son.

On October 11, 2007, the defendant transported the victim’s mother and her two children to the methadone clinic. Before exiting the taxicab, the victim’s mother informed the defendant that her appointment would be longer than usual. The victim’s mother then exited the taxicab and walked into the clinic. Mark Smith, a methadone patient, also had an appointment at the clinic. Earlier that morning, Smith had gone to another building located on the same premises as the clinic for a physical examination. After his examination, Smith walked to his vehicle, which was parked next to the defendant’s taxicab, to drop off a newspaper. As Smith walked past the taxicab, he observed the victim in the backseat. He then saw the defendant recline his seat and reach into the backseat where the victim was located. Smith stopped walking and observed the defendant “reach his hand underneath the [victim’s] butt and lift her up a little . . . .” He also observed the defendant “physically, with his fingers, two fingers of the middle— the two middle fingers of his right hand manipulating or massaging the crotch ... of the [victim] that was in the car.” He “could see both of [the defendant’s] middle fingers clearly massaging . . . underneath the girl’s behind, and there w[ere] two fingers up in between her thighs,” in her vaginal area. Smith watched the defendant for approximately forty-five seconds to verify that he was not misperceiving the defendant’s actions. With no doubt as to what he had been witnessing, Smith walked directly to the clinic to inform a counselor about the defendant’s conduct.

Upon entering the clinic, Smith encountered Chelsea Tuttle, a counselor. When Smith informed her about the defendant’s conduct, Tuttle walked out to the parking lot to investigate. As she stood and watched the defendant, she saw that he had his hand between the victim’s legs and “[h]e was moving his hand, his whole hand, up and down her bottom.” Tuttle then walked around the side of the taxicab and saw the defendant kiss the victim on her mouth with his mouth open. At this, Tuttle knocked on the taxicab window and asked the defendant why he was parked there and who he was waiting for. The defendant informed Tuttle that he was waiting for the victim’s mother and that the two children in his taxicab were hers. Tuttle returned to the clinic and informed the victim’s mother that she needed to remove her children from the defendant’s taxicab.

Thereafter, the defendant was arrested and charged by an information with the crimes of sexual assault in the fourth degree in violation of § 53a-73a (a) (1) (A), and risk of injury to a child in violation of § 53-21 (a) (2). Following a jury trial, the defendant was found guilty of both counts. The trial court subsequently imposed a total effective sentence of twenty-five years incarceration, execution suspended after fifteen years, followed by thirty-five years of probation. This appeal followed.

I

The defendant first claims that there was insufficient evidence to convict him of sexual assault in the fourth degree or risk of injury to a child. We disagree.

The standard of review we apply to a claim of insufficient evidence is well established. “In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . .

“Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. ... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence that it deems to be reasonable and logical. . . .

“Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [finder of fact], would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s] verdict of guilty.” (Internal quotation marks omitted.) State v. Davis, 283 Conn. 280, 329-30, 929 A.2d 278 (2007).

A

The defendant argues that he is entitled to an acquittal on the charge of sexual assault in the fourth degree. A person is guilty of sexual assault in the fourth degree when he “intentionally subjects another person to sexual contact who is . . . under thirteen years of age and the actor is more than two years older than such person.” General Statutes § 53a-73a (a) (1) (A). “Sexual contact” is defined in General Statutes § 53a-65 (3) as “any contact with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person or any contact of the intimate parts of the actor with a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person.” “Intimate parts” is defined in § 53a-65 (8) as “the genital area . . . groin, anus . . . inner thighs, buttocks or breasts.” Sexual contact with a victim’s intimate parts can be indirect and through clothing as long as it occurs for the purpose of the actor’s own sexual gratification or for the purpose of degrading or humiliating the victim. State v. Eric T., 8 Conn. App. 607, 613, 513 A.2d 1273 (1986).

The defendant here argues that the state’s evidence was insufficient to convict him of sexual assault in the fourth degree because the state failed to establish beyond a reasonable doubt that he had contact with the victim for the purpose of his own sexual gratification. This court has concluded, however, that a defendant’s intent to obtain sexual gratification from his contact with a victim can be based on “the fact that the defendant chose to touch [the victim’s] vagina . . . .” State v. Montoya, 110 Conn. App. 97, 103, 954 A.2d 193, cert. denied, 289 Conn. 941, 959 A.2d 1008 (2008); see also State v. Eric T., supra, 8 Conn. App. 614 (“[t]he choice of where the defendant touched his victim was unquestionably sexual in nature, and is evidence of his intentto commit a sexually gratifying act”).

Reviewing the facts in the light most favorable to sustaining the verdict, it is clear that the state met its burden of establishing that the defendant sexually assaulted the victim. Smith testified that he saw the defendant “reach his hand underneath the girl’s butt and lift her up a little . . . .’’He also testified that he observed the defendant “physically, with his fingers, two fingers of the middle — the two middle fingers of his right hand manipulating or massaging the crotch ... of the young lady or the young girl that was in the car.” Smith also stated that he “could see both of [the defendant’s] middle fingers clearly massaging . . . underneath the girl’s behind, and there was two fingers up in between her thighs,” in her vaginal area. Tuttle also testified that she saw the defendant with his hand between the victim’s legs and that “[h]e was moving his hand, his whole hand, up and down her bottom.” As further evidence of the defendant’s purpose, Tuttle testified that she saw the defendant kiss the victim on her mouth with his mouth open. We conclude that this evidence amply supports the jury’s conclusion that the defendant touched the victim’s vaginal area for the purpose of his own sexual gratification.

B

The defendant also argues that he is entitled to an acquittal on the charge of risk of injury to a child because the testimony supporting the state’s case was inconsistent with the evidence and constituted a “highly inconceivable version of events.”

So presented, this claim is not a proper challenge to the sufficiency of the evidence, but an improper challenge to the witnesses’ credibility. In support of this challenge, the defendant claims that the witnesses’ testimony was contradicted both by the testimony of the victim’s mother and by his own testimony. “Questions of whether to believe or to disbelieve a competent witness are beyond our review. As a reviewing court, we may not retry the case or pass on the credibility of witnesses. . . . We must defer to the [finder] of fact’s assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude.” (Internal quotation marks omitted.) State v. Liborio A., 93 Conn. App. 279, 284, 889 A.2d 821 (2006). We thus find this claim unavailing.

II

The defendant next claims that the trial court erred in failing to disclose pertinent portions of the department’s records concerning the victim and her mother on the ground that they did not contain exculpatory information. We disagree.

On September 22, 2008, the defendant filed a motion in limine entitled, “Motion for the Court’s In Camera Review of the [Department] File in Link Number 88320.” The state did not object to the defendant’s motion and the trial court granted the motion and conducted an in camera review of the records. The trial court found that the records did not contain any exculpatory information concerning the victim, her mother or this case. The court then resealed the records for purposes of later appellate review.

“Our standard of review in determining whether a court properly conducted an in camera review of confidential records is abuse of discretion. ... In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action.” (Citation omitted; internal quotation marks omitted.) State v. Na’im B., 113 Conn. App. 790, 794, 967 A.2d 1234, cert. denied, 292 Conn. 905, 973 A.2d 106 (2009).

After thoroughly reviewing all of the records contained in the department file as requested by the defendant, we agree with the trial court that they contain no exculpatory information of any kind. We thus conclude that the court did not abuse its discretion in refusing to order their disclosure to the defendant prior to trial in this case.

in

Lastly, the defendant claims that § 53-21 (a) (2) is unconstitutionally vague as applied to him. Specifically, he argues that the factual circumstances of this case are distinguishable from those in State v. Pickering, 180 Conn. 54, 428 A.2d 322 (1980), a case in which our Supreme Court rejected a claim that the morals provision of § 53-21 was unconstitutionally vague and stated that “the deliberate touching of the private parts of a child under the age of sixteen in a sexual and indecent manner is violative of [§ 53-21].” Id., 64. More specifically, the defendant argues that there were no allegations at trial that he was a “hard core molester” and that his alleged contact with the minor victim’s intimate parts occurred only once, in a public location. We reject the defendant’s claim.

Because the defendant concedes that he did not raise this issue at trial, and thus that he failed to preserve it for appeal, he now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). A defendant may prevail on an unpreserved claim of constitutional error only if it meets all of the conditions set forth in State v. Golding, supra, 239-40. In Golding, our Supreme Court held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id. We conclude that the record is adequate for review and that the claim is of constitutional magnitude because it implicates the defendant’s fundamental due process right to fair warning of the charges against him. See State v. Coleman, 83 Conn. App. 672, 676-77, 851 A.2d 329, cert. denied, 271 Conn. 910, 859 A.2d 571 (2004), cert. denied, 544 U.S. 1050, 125 S. Ct. 2290, 161 L. Ed. 2d 1091 (2005). We thus address Golding’s third prong, namely, whether a clear constitutional violation deprived the defendant of a fair trial.

“To demonstrate that [a] statute is unconstitutionally vague as applied to him, the defendant must . . . demonstrate beyond a reasonable doubt that [he] had inadequate notice of what was prohibited or that [he was] the [victim] of arbitrary and discriminatory enforcement. ... [A] law forbidding or requiring conduct in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates due process of law.” (Citation omitted; internal quotation marks omitted.) State v. Rocco, 58 Conn. App. 585, 589-90, 754 A.2d 196, cert. denied, 254 Conn. 931, 761 A.2d 757 (2000). “If the meaning of a statute can fairly be ascertained through judicial construction, however, it need not be stricken for vagueness. . . . References to judicial opinions involving the statute, the common law, legal dictionaries, or treatises may be necessary to ascertain a statute’s meaning to determine if it gives fair warning.” (Citations omitted; internal quotation marks omitted.) State v. Proto, 203 Conn. 682, 698-99, 526 A.2d 1297 (1987).

We begin by reviewing our Supreme Court’s decision in State v. Pickering, supra, 180 Conn. 54, which upheld a conviction under § 53-21 after rejecting a claim of unconstitutional vagueness. At the time of the alleged criminal conduct at issue in Pickering, General Statutes (Rev. to 1975) § 53-21 provided in relevant part: “Any person who wilfully or unlawfully . . . does any act likely to impair the . . . morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.” The defendant in Pickering, who had sexually molested his daughter, claimed that § 53-21 was unconstitutionally vague as applied to him. After reviewing the “extensive judicial gloss” on the words “act likely to impair the morals” of a child, our Supreme Court concluded that “the deliberate touching of the private parts of a child under the age of sixteen in a sexual and indecent manner” was violative of the statute. State v. Pickering, supra, 64.

After Pickering, § 53-21 was amended in the following manner, which is relevant to this appeal. The amendment, which was adopted in 1995, divided the statute into two subdivisions. See Public Acts 1995, No. 95-142, § 1. Subdivision (1) contained substantially the entire pre-1995 amendment version of the statute except that part prescribing the maximum sentence and fine that could be imposed for a violation thereof. Subdivision (2) incorporated language very similar to that language used by the court in Pickering to describe conduct of which the challenged portion of the statute gave fair notice, to wit: “contact with the intimate parts ... of a child ... in a sexual and indecent manner likely to impair the health or morals of such child . . . .” The post-1995 amendment version of § 53-21 thus “made express in its terms what [our Supreme Court] previously had defined, in Pickering and its progeny, as conduct constituting risk of injury to a child.” State v. James G., 268 Conn. 382, 408, 844 A.2d 810 (2004). By using the Supreme Court’s own description of conduct that clearly and unambiguously violated the preexisting statute, as the court had construed it, the legislature gave equally clear and unambiguous notice of the future scope and requirements of the statute, as amended.

As such, the defendant’s deliberate contact with the victim’s intimate parts was clearly proscribed by the statute, and it is of no moment that such contact occurred only once in a public location. In addition, this court has ruled that the risk of injury statute provides fair warning that a single touching violative of its provisions is sufficient to support a conviction. See State v. Antonio A., 90 Conn. App. 286, 294, 878 A.2d 358, cert. denied, 275 Conn. 926, 883 A.2d 1246 (2005), cert. denied, 546 U.S. 1189, 126 S. Ct. 1373, 164 L. Ed. 2d 81 (2006). We thus conclude that the case law, read in conjunction with the text of § 53-21 (a) (2), served to warn a potential violator that the deliberate touching of the intimate parts of a child in a sexual and indecent manner is prohibited. See State v. James G., supra, 268 Conn. 408-12. Because there was no clear constitutional violation that deprived the defendant of a fair trial, his claim fails to satisfy the third prong of Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-73a (a) (1) (A) provides: “A person is guilty of sexual assault in the fourth degree when . . . [s]uch person intentionally subjects another person to sexual contact who is . . . under thirteen years of age and the actor is more than two years older than such person . . . .”

       General Statutes § 53-21 (a) (2) provides in relevant part: “Any person who . . . has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child . . . shall be guiliy of ... a class B felony . . . .”

       Although the defendant has framed this claim under both the state and federal constitutions, he has not provided an independent analysis of our state constitutional provisions. In the absence of any such analysis by the defendant in this case, we confine our analysis to a discussion of his rights under the federal constitution. State v. Pinnock, 220 Conn. 765, 776 n.3, 601 A.2d 521 (1992).

       After the state presented its case, the defendant moved for a judgment of acquittal, which was denied.

       We note that the record does not establish that the victim’s mother consented to a review of the department records. Nothing in this opinion, however, should be construed to condone the court’s review of such records without the mother’s permission in her capacity as the minor victim’s guardian. See State v. Kulmac, 230 Conn. 43, 56-59, 644 A.2d 887 (1994).

       The morals provision of § 53-21 refers to the following language: “likely to impair the . . . morals of such child . . . .”

       The defendant also claims that his own testimony and the testimony of the victim’s mother, which conflicted with Smith’s and Tuttle’s testimony, rendered the defendant’s conduct “nebulous.” As mentioned in part I B of this opinion, however, “[qjuestions of whether to believe or to disbelieve a competent witness are beyond our review. As a reviewing court, we may not retry the case or pass on the credibility of witnesses. . . . We must defer to the [jury’s] assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude.” (Internal quotation marks omitted.) State v. Liborio A., supra, 93 Conn. App. 284.


author: GRUENDEL,

text:
    BHP LAND SERVICES, LLC v. JEAN SEYMOUR ET AL.
    (AC 33294)
    DiPentima, C. J., and Gruendel and Dupont, Js.

      Argued April 11 —
    officially released July 31, 2012

      J. Xavier Pryor, for the appellant (plaintiff).

      James H. Howard, for the appellees (defendants).
   Opinion

GRUENDEL,

J. The defendant Jean Seymour appeals from the judgment of the trial court in favor of the plaintiff, BHP Land Services, LLC. The defendant claims that the court improperly found that the plaintiff could recover on theories of unjust enrichment and quantum meruit. We affirm the judgment of the trial court.

The court found the following facts. In 2003, the defendant purchased the property in question, which is located in Enfield (property). The property consists of a house, a horse bam and pasture land of about eighteen to nineteen acres. The defendant has never resided at the property, but her daughter, Jennifer Seymour, has occupied the house since December, 2003. Jennifer Seymour runs a business on the property, consisting of horse boarding, horse training, sales and related activities. There was no written agreement between the defendant and Jennifer Seymour. The defendant paid the property taxes and the mortgage on the property. Jennifer Seymour did not pay rent, but she paid for all costs associated with her business. The defendant did not participate in the business in any way.

In 2007, Jennifer Seymour hired the plaintiff to grade and remove the stumps of trees on about two acres of land at an agreed on price of $2450 per acre. The work was completed, and Jennifer Seymour paid the bill. In 2008, Jennifer Seymour hired the plaintiff to stump, clear and level an additional nine acres at the same price per acre. The bill for this work was not paid in its entirety.

On December 11, 2009, the plaintiff filed a four count complaint. The first count sought foreclosure of a mechanic’s hen against the defendant in her capacity as a trustee. The remaining counts were filed against the defendant in her individual capacity and alleged breach of contract, quantum meruit and unjust enrichment. The defendant filed an amended answer in which she asserted eight special defenses.

The matter was tried to the court on November 30, 2010. In its memorandum of decision, the court found that the complaint alleged sufficient facts to substantiate an order to foreclose the mechanic’s lien. As to the second count, the court found in favor of the defendant because there was no contract between the plaintiff and the defendant. The court determined that the plaintiff was entitled to restitution pursuant to theories of both quantum meruit and unjust enrichment and, accordingly, rendered judgment against the defendant in the amount of $26,250. The defendant filed motions for articulation and reconsideration and a motion for reargument. The court denied the defendant’s motions. This appeal followed.

The plaintiff thereafter moved to dismiss the defendant’s appeal for lack of a final judgment. The plaintiff argued that there was no final judgment because, although the court found that the plaintiff was entitled to foreclose its mechanic’s lien, the court had not yet determined the terms of foreclosure, the value of the property or attorney’s fees and costs. See Essex Savings Bank v. Frimberger, 26 Conn. App. 80, 80-81, 597 A.2d 1289 (1991) (no appealable final judgment where trial court did not determine amount of debt, attorney’s fees or terms of foreclosure). On May 18, 2011, this court granted the motion as to count one against Jean L. Seymour as trustee and dismissed that portion of the appeal. The motion was denied as to the third and fourth counts. Accordingly, we review only those claims made by the defendant that pertain to the third and fourth counts.

The defendant claims that the court erred in finding that the plaintiff could recover under either a theory of unjust enrichment or quantum meruit. We disagree.

“We begin by setting forth the standard of review. Determining whether the equitable doctrines of quantum meruit and unjust enrichment are applicable in any case requires a factual examination of the particular circumstances and conduct of the parties. . . . The amount of damages available under either doctrine, if any, is a question for the trier of fact.” (Citations omitted.) David M. Somers & Associates, P.C. v. Busch, 283 Conn. 396, 407, 927 A.2d 832 (2007). A determination that the restitution is appropriate under quantum meruit or unjust enrichment is a factual determination that may be reversed only if clearly erroneous. See Schirmer v. Souza, 126 Conn. App. 759, 772, 12 A.3d 1048 (2011); Rosick v. Equipment Maintenance & Service, Inc., 33 Conn. App. 25, 40-41, 632 A.2d 1134 (1993).

“[Q]uantum meruit and unjust enrichment are common-law principles of restitution; both are noncontrac-tual means of recovery without [a] valid contract . . . .” Gagne v. Vaccaro, 255 Conn. 390, 401, 766 A.2d 416 (2001), aff'd after remand, 80 Conn. App. 436, 835 A.2d 491 (2003), cert. denied, 268 Conn. 920, 846 A.2d 881 (2004). “Quantum meruit is usually a remedy based on implied contract and usually relates to the benefit of work, labor or services received by the party who was unjustly enriched, whereas unjust enrichment relates to a benefit of money or property . . . and applies when no remedy is available based on the contract. . . . The lack of a remedy under a contract is a precondition to recovery based on unjust enrichment or quantum meruit.” (Citations omitted.) United Coastal Industries, Inc. v. Clearheart Construction Co., 71 Conn. App. 506, 512-13, 802 A.2d 901 (2002).

We now turn our attention to the court’s finding that the plaintiff could recover on a claim of unjust enrichment. The court determined that the defendant would be unjustly enriched by the improvements made to her property by the plaintiff unless restitution was granted to the plaintiff. The defendant claims that this finding was erroneous because (1) the plaintiff, in its complaint, alleged the existence of a contract with Jennifer Seymour and (2) the evidence did not support the court’s finding that the defendant derived a benefit from the plaintiffs services.

“[A] claim for unjust enrichment has broad dimensions. Unjust enrichment applies wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract. ... A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another. . . . With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard. . . . Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy. . . . Recovery [under unjust enrichment] is proper if the defendant was benefited, the defendant did not pay for the benefit and the failure of payment operated to the detriment of the plaintiff.” (Citations omitted; internal quotation marks omitted.) Rent-A-PC, Inc. v. Rental Management, Inc., 96 Conn. App. 600, 604—605, 901 A.2d 720 (2006).

I

The defendant first claims that it was error for the court to award damages to the plaintiff on a theory of unjust enrichment because the plaintiffs complaint alleged the existence of a contract. She claims that certain paragraphs of the complaint that allege a contract are a judicial admission of a contract by which the court is bound. We disagree.

In its complaint, the plaintiff alleged that it proposed to the defendant, by and through her agent, Jennifer Seymour, to perform clearing, grading and site modification and that the defendant, by and through her agent, accepted the proposal. We do not agree that the plaintiffs allegations may be equated with a judicial admission of a contract between the parties that would prevent it from asserting the noncontractual theories of restitution of unjust enrichment and quantum meruit.

The plaintiffs allegations were not a judicial admission that a contract existed; rather, the plaintiff merely pleaded noncontractual remedies in the alternative. “Parties routinely plead alternative counts alleging breach of contract and unjust enrichment, although in doing so, they are entitled only to a single measure of damages arising out of these alternative claims. . . . Under this typical belt and suspenders approach, the equitable claim is brought in an alternative count to ensure that the plaintiff receives some recovery in the event that the contract claim fails.” (Citations omitted.) Stein v. Horton, 99 Conn. App. 477, 485, 914 A.2d 606 (2007). The court was not, therefore, bound by the plaintiffs allegations that there was a contract between the parties. The court found that, while Jennifer Seymour was, indeed, the defendant’s agent, there was no contract between the defendant and the plaintiff. It was for this reason that the court found in favor of the defendant on the plaintiffs breach of contract claim, and reached the claims of quantum meruit and unjust enrichment. See Bolmer v. Kocet, 6 Conn. App. 595, 612, 507 A.2d 129 (1986) (“[a]lthough the plaintiffs did not specifically label [the unjust enrichment] count as being in the alternative to the first and second counts, it is clear that it is meant to provide an alternative basis for recovery in the event of a failure of proof under those counts”).

II

The defendant also claims that the court’s determination that the defendant was unjustly enriched by the plaintiffs services is not supported by the record. We disagree.

The court found that any improvements to the property inured to the defendant’s benefit as the owner of the property. It found that she would be unjustly enriched by the improvements to her property unless restitution was granted to the plaintiff. It awarded the plaintiff damages “in the amount of $26,250, which was the contract price for the work done.” The defendant contends that there was no evidence presented to show that the defendant benefited from the work performed by the plaintiff.

Our review of the record persuades us that there was sufficient evidence for the court to determine properly that the defendant derived a benefit from the plaintiffs services. The court heard testimony from Jennifer Seymour that the defendant attended a public hearing before Enfield’s inland wetlands and watercourses agency regarding the grading, clearing and seeding project on the property. It also heard testimony from Brian Poliansky, the sole member of the plaintiff, and from Jennifer Seymour that a separate entity cleared the trees before the plaintiff began its work on the property. Poliansky testified that when he began work at the property it looked like “a tornado went through.” He removed hundreds of stumps from the property, as well as debris from stumps that had already been removed.

Whether the defendant was benefited is a factual determination we review under the clearly erroneous standard. Schirmer v. Souza, supra, 126 Conn. App. 772. “This limited scope of review is consistent with the general proposition that equitable determinations that depend on the balancing of many factors are committed to the sound discretion of the trial court.” (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 433, 452, 970 A.2d 592 (2009). On the basis of the record before us, we conclude that the court’s finding that a benefit inured to the defendant from the plaintiffs work is not clearly erroneous.

The defendant also claims that the court erred in finding that the plaintiff could recover in quantum meruit. Because we affirm the judgment of the court in granting restitution to the plaintiff in the amount of $26,250 on a theory of unjust enrichment, we need not consider that alternative basis for the court’s award.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs complaint contained one count against Jean Seymour as trustee of the Jean L. Seymour Revocable Trust and three counts against Jean Seymour in her individual capacity. Only the counts against Jean Seymour in her individual capacity are considered in this appeal, and we therefore refer to her as the defendant.

       In August, 2009, the defendant conveyed the property to herself as trustee of the Jean L. Seymour Revocable Trust by quitclaim deed.

       The defendant also claims that the court’s finding that Jennifer Seymour was the defendant’s agent under a theory of apparent authority is not legally or factually correct. We need not address this claim, as a finding of agency is not relevant to recovery against the defendant in her individual capacity under the theories of quantum meruit or unjust enrichment.

       “Judicial admissions are voluntary and knowing concessions of fact by a party or a party’s attorney occurring during judicial proceedings.” (Internal quotation marks omitted.) Macy v. Lucas, 72 Conn. App. 142, 153, 804 A.2d 971, cert. denied, 262 Conn. 905, 810 A.2d 272 (2002). “Factual allegations contained in pleadings upon which the case is tried are considered judicial admissions and hence irrefutable as long as they remain in the case. . . . An admission in pleading dispenses with proof, and is equivalent to proof.” (Intemal quotation marks omitted.) Kronberg v. New Hampshire Ins. Co., 69 Conn. App. 330, 333, 794 A.2d 561, cert. denied, 260 Conn. 934, 802 A.2d 88 (2002).

       The defendant does not challenge the court’s computation of damages but, rather, its finding that the defendant benefited from the plaintiffs services. The amount awarded by the court represents the $24,450 the plaintiff charged to stump, clear and level nine acres of land plus an additional $4300 for landscaping, offset by payments made by Jennifer Seymour totaling $2500. We agree with the plaintiff that the price charged can be a fair and reasonable estimate of the benefit received by the defendant. While the measure of damages in an unjust enrichment case is the benefit to the defendant, not the loss to the plaintiff, the benefit may nevertheless be approximated from a contract, as it is evidence of the fair and reasonable value of the benefit. See Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 281-82, 649 A.2d 518 (1994).