author: SCHALLER, J.

text:
    PAULINA LOMBARDI v. TOWN OF EAST HAVEN ET AL.
    (AC 31181)
    Bishop, Alvord and Schaller, Js.

      Argued November 30, 2010
    officially released February 15, 2011

      Nancy F. Myers, with whom, on the brief, was Hugh F. Keefe, for the appellant (named defendant).

      William F. Gallagher, with whom, on the brief, were Fiugh D. Hughes and Joseph P. Friedler, for the appel-lee (plaintiff).
   Opinion

SCHALLER, J.

The plaintiff, Paulina Lombardi, sustained injuries as a result of a trip and fall accident over a three inch raised sidewalk slab on Main Street in East Haven and commenced an action against the defendant town of East Haven pursuant to the municipal highway defect statute, General Statutes § 13a-149. Following a two day trial, the jury returned a verdict in the plaintiffs favor and awarded her damages in the amount of $173,365.25. The trial court denied the defendant’s motion for a directed verdict and motion to set aside the verdict, and rendered judgment in favor of the plaintiff. The defendant appeals, claiming that (1) the court abused its discretion by admitting certain evidence, including (a) the testimony of the plaintiffs expert, an engineer, and (b) a record of telephone calls that the defendant received pertaining to Main Street, and (2) the plaintiff faded to prove essential elements of her claim under the highway defect statute, including (a) the defendant’s actual or constructive knowledge of the defect and (b) that the defect was the sole proximate cause of her injuries. We affirm the judgment of the trial court.

In her complaint, the plaintiff alleged that on March 15, 2005, at approximately 4:30 p.m., she was exercising due care while walking on the public sidewalk on the north side of Main Street in East Haven when she was caused to trip and fall over an uneven portion of the sidewalk. As a result of her fall, she sustained injuries including two transverse fractures, which required several surgeries, a syndrome known as reflex sympathetic dystrophy, and 33 percent permanent partial disability of her left hand. Additional facts will be set forth as necessary.

I

The defendant claims that the court abused its discretion by admitting certain evidence, including the testimony of the plaintiffs expert, an engineer, and a record of telephone calls that the defendant received pertaining to Main Street. We are not persuaded.

As a preliminary matter, we set forth the well established standard of review. “[T]he trial court has broad discretion in ruling on the admissibility ... of evidence . . . [and its] ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” (Internal quotation marks omitted.) Desrosiers v. Henne, 283 Conn. 361, 365, 926 A.2d 1024 (2007).

A

The defendant claims that the testimony of Michael Miller, an engineer, should have been precluded because it was “irrelevant, speculative, lacked foundation, usurped the jury’s function and was not helpful to the jury in considering the issues involved in this case.” Prior to the start of evidence, the defendant filed a motion to preclude Miller’s testimony on substantially the same basis. At a hearing on the motion, Miller testified as to his education and qualifications as a licensed professional engineer and his years of experience conducting forensic engineering investigations, particularly with regard to pedestrian safety cases. He also testified as to the basis of his opinion regarding the cause of the sidewalk defect. The court denied the defendant’s motion, reasoning that Miller had knowledge and experience beyond that of the average juror, that he based his opinions on his observations of the sidewalk and his experience, and that any other challenges with respect to the basis of his opinion went to its weight, not its admissibility.

Miller testified that he visited the area of the plaintiffs fall three months after the accident and observed the sidewalk, the grass median between the sidewalk and the road, and a tree growing within the grass median. He noted that, at a joint between two slabs of the concrete sidewalk, the sidewalk was uplifted so that the part of the sidewalk closer to the tree was higher than the part that is farthest from the tree. He measured the height nearest the tree as just over three inches. He showed the jury two photographs of the scene, which were admitted as full exhibits, and described two visible tree roots, one growing parallel to the sidewalk and one growing peipendicular to and in the direction of the sidewalk. He testified that, in his opinion, what “more probably than not” caused the uplift of the sidewalk was the growth of the tree and the pressure underneath the slab from the tree’s roots. He testified further that the condition occurred over a period of years rather than over a few days, weeks or months. In his opinion, the condition of the sidewalk existed for at least one year. On cross-examination, Miller testified that he had never been responsible for the maintenance and safety of municipal sidewalks, he was not an expert on trees, and he did not know whether the sidewalk predated the tree, how old the sidewalk was or precisely how long the defect had existed. He also testified that, as part of his investigation, he did not dig under the public sidewalk to confirm that a root was actually under it.

Our Supreme Court “recently articulated the test for the admission of expert testimony, which is deeply rooted in common law. Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues. ... In other words, [i]n order to render an expert opinion the witness must be qualified to do so and there must be a factual basis for the opinion.” (Citations omitted; internal quotation marks omitted.) Sullivan v. Metro-North Commuter Railroad Co., 292 Conn. 150, 158, 971 A.2d 676 (2009). “Once the threshold question of usefulness to the jury has been satisfied, any other questions regarding the expert’s qualifications properly go to the weight, and not to the admissibility, of his testimony.” Davis v. Margolis, 215 Conn. 408, 417, 576 A.2d 489 (1990).

The defendant maintains that expert testimony was unnecessary as to whether the defect constituted a hazard because the defect was obvious to an ordinary juror. Based on our review of the record and Miller’s testimony, we conclude that the court did not abuse its discretion in finding that Miller qualified as an expert in the field of pedestrian safety and that his opinion assisted the jury in determining issues of fact. See Conn. Code Evid. § 7-2.

Our code of evidence provides that an expert may give an opinion “provided sufficient facts are shown as the foundation for the expert’s opinion.” Id., § 7-4 (a). “The facts in the particular case upon which an expert bases an opinion may be those perceived by or made known to the expert at or before the proceeding. ...” Id., § 7-4 (b). “[A]n expert may have personal knowledge of the underlying facts. . . . [A]n expert may rely on information ‘made known’ to the expert before trial provided that information is customarily relied on by experts in the field.” (Citations omitted.) C. Tait & E. Prescott, Connecticut Evidence (4th Ed. 2008) § 7.9.1, pp. 429-30. “There are several ‘secondhand sources’ of information available to an expert. First, as a general matter, a witness’ qualification as an expert is founded on the expert’s education, training, and experience, all of which consists of the absorption and evaluation of information and experience of others. . . . The use of such information is clearly permissible under this provision . . . .” Id., § 7.9.3, pp. 430-31.

The defendant also maintains that, based on the testimony elicited during its cross-examination, it is clear that Miller’s testimony regarding the length of time it took for the uplift to occur lacked foundation and was based on pure speculation. Based on our review of Miller’s testimony, we are persuaded that his opinion was based on his direct observation of the defect as well as his training and his knowledge gained from years of experience conducting forensic engineering investigations in pedestrian safety cases. The defendant’s challenges go to the weight that should be afforded Miller’s testimony, not its admissibility. Accordingly, we cannot conclude that the court abused its discretion in finding Miller’s testimony admissible.

B

The trial court admitted into evidence a record of telephone calls, or a “call log,” pertaining to complaints that the defendant received regarding conditions that needed attention on Main Street from January 2, 2003, to June 29,2005, over the defendant’s objection. The call log contains no complaints pertaining to the sidewalk in front of 641 Main Street, the precise location of the defect at issue. The defendant maintains that the call log is, therefore, not relevant to whether it had notice of the particular defect. The plaintiff maintains that the call log was relevant to demonstrate that the defendant received notice of defects only through the observations of citizens and its employees and that, although employees responded to various problems on Main Street, they failed to pay attention to other defects, including the condition in question. We conclude that the evidence was relevant to, though not conclusive of, whether the defendant could be charged with constructive notice, and, therefore, the court did not abuse its discretion by admitting the call log.

The following additional facts are relevant to the defendant’s claim. Mario Ricozzi, who was director of public services and town engineer for the defendant in March, 2005, testified regarding how the defendant received notice of sidewalk defects: people called the defendant regarding the defect, or they called about other problems, and, when the defendant’s employees addressed the unrelated problem and noticed a sidewalk defect, they would report it. The dispatcher who received calls from the public would record those calls on a call log contemporaneously in the ordinary course of business.

Thereafter, the plaintiff attempted to admit the call log into evidence. The defendant challenged the relevance of the call log on the ground that there were no complaints therein pertaining to the sidewalk defect at issue. The plaintiff argued that the document was “illustrative of the number of times the [defendant] received calls regarding problems on [the] very street where the incident occurred.” She stated: “I think that it will assist the jury in understanding how many times the [defendant] was called out to this general vicinity and yet still failed to fulfill [its] duty to inspect this sidewalk, to identify the problem [and to] rectify it.”

The court admitted the call log as a full exhibit because it qualified under the business record exception and it was at least “slightly” relevant to allow the plaintiff to meet her burden. Ricozzi testified further that, although the call log reflects that the defendant responded to seventy-six calls to various parts of Main Street dining the approximately eighteen months represented in the call log, no employee of the defendant reported the sidewalk defect at issue during that time.

The following legal principles guide our analysis. “Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter. . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative. . . . [T]he relevance requirement ... is a fairly low hurdle . . . .” (Citations omitted; internal quotation marks omitted.) State v. Allen, 289 Conn. 550, 562, 958 A.2d 1214 (2008).

The defendant challenges the relevance of the call log on the ground that there was testimony that Main Street runs from one end of town to the other and that there was no evidence presented as to the distance of the areas involved in the call log in relation to the location of the plaintiffs accident. Accordingly, the defendant maintains that the call log was irrelevant to whether it had notice of the defect. The defendant is correct insofar as the call log is irrelevant as to whether it had actual notice of the defect. As discussed in part II A of this opinion, however, the plaintiff argued that the defendant had constructive notice of the defect. An element of constructive notice in the context of a claim arising under § 13a-149 is whether the defect would have been disclosed by a reasonable supervision of the streets of the town as a whole. See Nicefaro v. New Haven, 116 Conn. App. 610, 618, 976 A.2d 75, cert. denied, 293 Conn. 937, 981 A.2d 1079 (2009), quoting Meallady v. New London, 116 Conn. 205, 209, 164 A. 391 (1933).

From our review of the evidence, we cannot conclude that the call log failed to support a relevant fact even to a slight degree. Although the call log was not conclusive as to whether the defendant’s employees went to the precise area of the defect and failed to notice or to report it, it did tend to show that various citizens called the defendant’s attention to conditions on Main Street. It also tended to show the manner in which the defendant supervised Main Street, and, by reasonable inference, its sidewalks as a whole, during the relevant period. Accordingly, we cannot conclude that the trial court abused its broad discretion by admitting the call log.

II

The defendant’s remaining claims involve the plaintiffs failure to prove essential elements of her claim under the highway defect statute. “In enacting § 13a-149, our legislature imposed a penalty upon the municipality, measured by the actual injury caused by its disobedience of the statute, and enforceable by the person injured through an action on the statute .... To recover under § 13a-149, a plaintiff must prove, by a fair preponderance of the evidence, (1) that the highway was defective as claimed; (2) that the defendant actually knew of the particular defect or that, in the exercise of its supervision of highways in the city, it should have known of that defect; (3) that the defendant, having actual or constructive knowledge of this defect, failed to remedy it having had a reasonable time, under all the circumstances, to do so; and (4) that the defect must have been the sole proximate cause of the injuries and damages claimed, which means that the plaintiff must prove freedom from contributory negligence.” (Citation omitted; internal quotation marks omitted.) Nicefaro v. New Haven, supra, 116 Conn. App. 612-13. Only the determination that the sidewalk was defective is unchallenged in the present appeal.

The defendant’s claims in this regard relate to questions of fact that are subject to the clearly erroneous standard of review. “A court’s determination is clearly erroneous only in cases in which the record contains no evidence to support it, or in cases in which there is evidence, but the reviewing court is left with the definite and firm conviction that a mistake has been made.” (Internal quotation marks omitted.) Considine v. Waterbury, 279 Conn. 830, 858, 905 A.2d 70 (2006).

A

The defendant argues that the plaintiff failed to prove, by a fair preponderance of the evidence, that it had constructive notice of the defect. We disagree.

“The existence of constructive notice is a question of fact subject to the clearly erroneous standard of review.” Nicefaro v. New Haven, supra, 116 Conn. App. 613.

We set forth the applicable principles of law. “[T]he mere existence of a defect does not establish liability under § 13a-149.” Id., 616. Rather, “[a] municipality is required to exercise reasonable supervision over its streets and is chargeable with notice of what such supervision would disclose. . . . That duty is a reactive obligation, not an anticipatory obligation. . . . The notice, actual or implied, of a highway defect causing injuries which a municipality must receive as a condition precedent [to] liability for those injuries, is notice of the defect itself which occasioned the injury, and not merely of conditions naturally productive of that defect and subsequently in fact producing it. ” (Citations omitted; internal quotation marks omitted.) Id., 614.

“[T]o charge a defendant with constructive notice it is incumbent on the plaintiff to establish that the defect had been there a sufficient length of time and was of such a dangerous character that the defendant by the exercise of reasonable care could and should have discovered and remedied it.” (Internal quotation marks omitted.) Id. “[0]ur Supreme Court has stated that [inferences as to prior existence [of a highway defect] for a considerable time, which might arise from a condition necessarily more or less permanent or of slow development are permitted in certain circumstances.” (Internal quotation marks omitted.) Id., 616; compare Burlant v. Hartford, 111 Conn. 36, 37,149 A. 132 (1930) (undisputed evidence of effect of frost on level of flagstone walk rendered unavailable any such inferences) with Linn v. Hartford, 135 Conn. 469, 471-72, 66 A.2d 115 (1949) (“[i]n view of the character of the pavement in question, the finding that the condition had developed gradually over a period of a year or more was sufficient to sustain the conclusion that the defendant had constructive notice”).

In the present case, the plaintiff presented expert testimony that the sidewalk defect was more probably than not caused by a tree root growing and exerting pressure under the sidewalk slab, that such condition developed over time and that the defect existed for at least one year. See Nicefaro v. New Haven, supra, 116 Conn. App. 616-17 (“[g]iven [the] testimony regarding the slow development of the defect [caused by tree roots], the court reasonably could have inferred that the defect existed for a period of time sufficient for the defendant to have had constructive notice thereof’); see also Linn v. Hartford, supra, 135 Conn. 471-72. We cannot conclude that the plaintiff failed to establish constructive notice as a matter of law when, as here, there was evidence as to the length of time the defect existed that the jury reasonably could have credited. Cf. Irish v. Ives, 158 Conn. 116,117, 256 A.2d 245 (1969) (plaintiff failed to establish constructive notice as matter of law when there was no proof as to how long defect existed).

Returning our attention to the question of reasonable care in discovering the defect, we note that “[t]he test is not whether a defect would have been disclosed by an examination of the particular street, but rather whether it would have been disclosed by a reasonable supervision of the streets of the city as a whole. . . . At the same time, a municipality is required to exercise a greater degree of care over its sidewalks than other traveled ways. . . . Thus, the defendant’s reasonable care ... is measured not by its supervision of the particular sidewalk on which the plaintiff fell, but by the supervision of the defendant’s sidewalks as a whole.” (Citations omitted; internal quotation marks omitted.) Nicefaro v. New Haven, supra, 116 Conn. App. 618.

Ricozzi, the director of public services and town engineer for the defendant when the plaintiffs accident occurred in March, 2005, testified that the defendant had over 100 miles of sidewalk to maintain. For two years prior to his appointment in January, 2005, no town employee held his position. Rather, a consulting engineering company acted as the de facto engineer. There was no standing contract for sidewalk repairs when he took office in January, 2005; rather, contractors could be called on an ad hoc basis. Sidewalk repairs were prioritized by geography. The defendant learned about defects through the observations of its employees and from reports from the public. Such reports from the public were recorded in a call log. The plaintiff presented as evidence the call log for Main Street during the period of January 2, 2003, to June 29, 2005, which tended to show the presence of the defendant’s employees on Main Street generally, though not necessarily in the area of the claimed defect.

Although the defendant argues that it had a reasonable practice for supervising its sidewalks as a whole, from the testimony regarding the ad hoc approach to sidewalk maintenance and in light of the evidence regarding the length of time that the particular defect existed, the jury reasonably could have concluded that the defendant’s supervision of its sidewalks as a whole was inadequate. Accordingly, the defendant’s claim must fail.

B

The defendant also claims that the plaintiff failed to prove that the alleged sidewalk defect was the sole proximate cause of her injuries. The plaintiff argues in response that the defendant raises only questions of fact that the jury decided adversely to the defendant. We agree with the plaintiff.

Whether the plaintiff was contributorily negligent is a question of fact subject to the clearly erroneous standard of review. Id., 620. “Because a plaintiff seeking recovery under § 13a-149 must prove that the defect was the sole proximate cause of her injuries, it follows that the plaintiff must demonstrate freedom from contributory negligence.” Id., 621. “To do so, a plaintiff must have suffered injury while using the defective highway with due care and skill.” (Internal quotation marks omitted.) Id.

The defendant’s argument is that the condition of the sidewalk was so obvious that an ordinarily prudent person would have seen it and, consequently, that the plaintiffs failure to exercise due care must have contributed to her injuries. The defendant emphasizes that if the plaintiff was even 1 percent negligent, she may not recover under the statute. The plaintiff testified as to the manner in which she conducted herself when she walked on Main Street the day of her accident. Specifically, she testified that she was wearing sneakers, she was looking around and ahead, she was not distracted with a cell phone or a music device and she was not running. As the sole arbiter of credibility, the jury was free to credit that testimony and to find that the plaintiff exercised due care. See id., 622. Because there was evidence in the record from which the jury could have concluded that the plaintiff was free of contributory negligence, the defendant’s claim must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       Prior to trial, the plaintiff withdrew the second count of her complaint against the defendant F. C. Russo Family, LLC. We therefore refer in this opinion to the town of East Haven as the defendant.

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

       The defendant’s counsel did note that digging under the public sidewalk probably would have been illegal.

       Ricozzi testified that the calls in the call log involved a wide range of services, including bagging leaves, picking up bulky waste and fixing a fallen flag, not necessarily sidewalk defects.

       We note that the defendant does not dispute that the sidewalk defect exists and the plaintiff does not dispute that she failed to prove that the defendant had actual notice of the defect.

       The defendant did not brief separately its claim that the plaintiff failed to prove that the defendant, having constructive knowledge of this defect, failed to remedy it, having had a reasonable time, under all the circumstances, to do so. We consider this claim to be abandoned insofar as it is distinct from the claim that the plaintiff failed to prove constructive notice and/or failed to prove that the defect existed for any length of time. See Connecticut Light & Power Co. v. Dept, of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003) (“[w]here a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned” [internal quotation marks omitted]).


source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    GATEWAY, KELSO AND COMPANY, INC. v. WEST HARTFORD NO. 1, LLC
    (AC 31374)
    Lavine, Robinson and Lavery, Js.

      Argued November 18, 2010
    officially released February 15, 2011

      Kerry M. Wisser, with whom was Nathan A. Schatz, for the appellant (defendant).

      Daniel J. Klau, with whom, on the brief, was James G. Green, Jr., for the appellee (plaintiff).
   Opinion

ROBINSON, J.

The defendant, West Hartford No. 1, LLC, appeals from the denial of its motion for summary judgment, which asserted that the doctrine of collateral estoppel barred the action brought by the plaintiff, Gateway, Kelso & Company, Inc. The issue presented in this appeal is whether a factual finding made in a prejudgment remedy proceeding may be accorded collateral estoppel effect in a subsequent proceeding on the merits. Because we conclude that it may not, we affirm the decision of the trial court.

The following facts and procedural history are relevant to our review of the defendant’s claim on appeal. As alleged in the underlying complaint, the plaintiff was engaged in the business of developing commercial real estate. During September and October, 2006, the plaintiff was looking for commercial real estate to purchase, to develop and subsequently to lease to its client, Wakef-em Food Corporation (Wakefem), a supermarket retail company. In October, 2006, the plaintiffs vice president, Joseph Penner, contacted the defendant’s real estate broker, Reno Properties, so that Penner could inspect one of the defendant’s properties for purchase. Reno Properties advised Penner that the defendant had a parcel located at 983 New Britain Avenue in West Hartford available for purchase. In a letter to Penner on behalf of the defendant, Reno Properties stated that the parcel was available for $7 million. Wakefem indicated to Penner that it was interested in leasing property in West Hartford. After some negotiation, Penner sent a letter of intent to purchase the parcel for $7 million.

Shortly thereafter, the defendant learned that the plaintiffs client was Wakefem. After learning the client’s identity, the defendant contacted Wakefem directly with an offer to lease the parcel, effectively removing the plaintiff from the transaction. Wakefem informed the defendant that it could not enter into a lease with the defendant because of its agreement with the plaintiff. The defendant then contacted the plaintiff and negotiated a contract under which the plaintiff would release Wakefem from its agreement in exchange for a $500,000 fee from the defendant, payable upon successful consummation of an agreement between the defendant and Wakefem. The defendant successfully negotiated a lease with Wakefem but failed to uphold its agreement with the plaintiff to pay the $500,000 fee. On March 11, 2009, the plaintiff commenced an action against the defendant alleging fraud, breach of contract and violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq.

In February, 2008, the plaintiff had filed an application for a prejudgment remedy, and a proposed writ of summons and complaint that relied on the same facts alleged in the underlying complaint. The application sought an order authorizing an attachment of the defendant’s property in the amount of $500,000. At the hearing on the application, the defendant argued that the plaintiffs proposed complaint sought to enforce what was, in essence, a brokerage agreement and that, because the plaintiff was not licensed to act as a broker in Connecticut, General Statutes § 20-325a (a) barred the plaintiff from bringing an action against the defendant to enforce the agreement. The plaintiff did not dispute that it was unlicensed but argued that § 20-325a (a) was inapplicable because the agreement between the plaintiff and the defendant was not a brokerage agreement. The court, McWeeny, J., heard testimony from two of the plaintiffs witnesses and listened to the parties’ arguments. On September 17, 2008, the court issued the following handwritten ruling: “The application is denied after considering the defense that the damages sought are in the nature of a commission, which the plaintiff is not able to collect pursuant to [General Statutes §] 20-311 (3).” The court did not issue any other formal, written decision or otherwise articulate its reasoning.

On April 9, 2009, the defendant filed a motion for summary judgment in the present action. The defendant conceded that the only critical issue was whether the plaintiff had been “ ‘engaging in real estate business’ ” as defined in § 20-311 (3). The defendant contended, however, that Judge McWeeny’s finding that the plaintiff had engaged in real estate business collaterally estopped the plaintiff from litigating that issue. For that reason, the defendant argued that there was no genuine issue of material fact and, therefore, that it was entitled to judgment as a matter of law. In its opposition, the plaintiff argued that, as a matter of law, a ruling on a prejudgment remedy application could not have collateral estoppel effect in a subsequent proceeding on the merits of the underlying complaint because the prejudgment remedy hearing did not provide a full and fair opportunity to litigate, a necessary requirement for the application of collateral estoppel. Consequently, the plaintiff argued that a genuine issue of material fact existed as to whether the plaintiff had engaged in real estate business. On July 28, 2009, the court, Elgo, J., denied the motion for summary judgment, noting: “Material issues of fact are in dispute; this court is not persuaded that the court’s ruling on the [application for a prejudgment remedy] should be given collateral estoppel effect.” The defendant appealed. Additional facts will be set forth as necessary.

Our standard of review for summary judgment is well settled. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summaiy judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . The test is whether the party moving for summary judgment would be entitled to a directed verdict on the same facts.” (Internal quotation marks omitted.) SS-II, LLC v. Bridge Street Associates, 293 Conn. 287, 293-94, 977 A.2d 189 (2009). Because the court’s decision on a motion for summary judgment is a legal determination, our review on appeal is plenary. Leon v. DeJesus, 123 Conn. App. 574, 576, 2 A.3d 956 (2010); see also Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005). Additionally, the applicability of res judicata and collateral estoppel presents a question of law over which we employ plenary review. Powell v. Infinity Ins. Co., 282 Conn. 594, 601, 922 A.2d 1073 (2007).

Under Connecticut law, “ [collateral estoppel, or issue preclusion, prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action. . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment. . . . The doctrine of collateral estoppel is based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate.” (Citations omitted; internal quotation marks omitted.) Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 296, 596 A.2d 414 (1991). Hence, a party may assert the doctrine of collateral estoppel successfully when three requirements are met: “[1] [t]he issue must have been fully and fairly litigated in the first action, [2] it must have been actually decided, and [3] the decision must have been necessary to the judgment.” Busconi v. Dighello, 39 Conn. App. 753, 767-68, 668 A.2d 716 (1995), cert. denied, 236 Conn. 903, 670 A.2d 321 (1996). “Whenever collateral estoppel is asserted . . . the court must make certain that there was a full and fair opportunity to litigate. The requirement of full and fair litigation ensures fairness, which is a crowning consideration in collateral estoppel cases. . . . [I]f the nature of the hearing carries procedural limitations that would not be present at a later hearing, the party might not have a full and fair opportunity to litigate.” (Citations omitted; internal quotation marks omitted.) Aetna Casualty & Surety Co. v. Jones, supra, 306; see also 1 Restatement (Second), Judgments § 28, comment (j) (1982) (“the court in the second proceeding may conclude that issue preclusion should not apply because the party sought to be bound did not have an adequate opportunity or incentive to obtain a full and fair adjudication in the first proceeding”).

The defendant claims that the court improperly denied its motion for summary judgment because it failed to accord collateral estoppel effect to Judge McWeeny’s finding that the plaintiff had engaged in real estate business. Specifically, the defendant argues that the issue of whether the plaintiff had engaged in real estate business was fully and fairly litigated, actually decided and necessarily determined in the prejudgment remedy proceeding. We disagree with the defendant and conclude that the court properly denied the defendant’s motion for summary judgment because the prejudgment remedy hearing did not afford the plaintiff an opportunity to fully and fairly litigate the merits of its claim.

“It is firmly established that the trial court’s hearing in probable cause is not intended to be a full scale trial on the merits of the plaintiffs claim.” Fischel v. TKPK, Ltd., 34 Conn. App. 22,24, 640 A.2d 125 (1994). Prejudgment remedy proceedings are circumscribed by statute; General Statutes § 52-278d (a); and “are not involved with the adjudication of the merits of the action brought by the plaintiff or with the progress or result of that adjudication. They are only concerned with whether and to what extent the plaintiff is entitled to have property of the defendant held in the custody of the law pending adjudication of the merits of that action. . . . The adjudication made by the court on [an] application for a prejudgment remedy is not part of the proceedings ultimately to decide the validity and merits of the plaintiffs cause of action. It is independent of and collateral thereto . . . .” (Citation omitted; internal quotation marks omitted.) Morris v. Cee Dee, LLC, 90 Conn. App. 403, 411-12, 877 A.2d 899, cert. granted on other grounds, 275 Conn. 929, 883 A.2d 1245 (2005) (appeal withdrawn March 13, 2006). The trial court may grant a prejudgment remedy upon a finding that “there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff’; General Statutes § 52-278d (a) (1); this is, of course, a less demanding standard than the preponderance of the evidence standard that applies in civil trials. It necessarily will be the case that “the evidence presented at the hearing will not be as well developed as it would be at trial, particularly when . . . the parties have not finished the discovery process.” (Internal quotation marks omitted.) CC Cromwell, Ltd. Partnership v. Adames, 124 Conn. App. 191,194, 3 A.3d 1041 (2010). “There is no assurance that, when a hearing on the merits is eventually reached, the evidence will be identical to the evidence adduced at the prejudgment remedy hearing. In fact, the evidence at trial will usually be much more expansive and may include exhibits or testimony not yet available at the time of the hearing on the application or the prejudgment remedy.” Bosco v. Arrowhead by the Lake, Inc., 53 Conn. App. 873,874-75, 732 A.2d 205 (1999).

The sole purpose of the hearing in this case was to determine whether and to what extent the plaintiff was entitled to have the defendant’s property attached pending adjudication of the merits of that action. In light of this limited inquiry, the hearing in this case lasted no longer than one day. The court permitted only the plaintiffs witnesses to testify. The defendant was not permitted to call any witnesses. The court did not permit the defendant to complete its cross-examination of one of the plaintiffs witnesses, which resulted in the plaintiff being unable to conduct redirect examination of that same witness. The substantial procedural disparity between the prejudgment remedy proceeding and a subsequent proceeding on the merits negates the pre-clusive effect of Judge McWeeny’s finding. Moreover, if collateral estoppel effect were to be accorded to findings made in prejudgment remedy proceedings, those proceedings would likely evolve into full scale determinations of the merits of the plaintiffs claim. We conclude, therefore, that the court properly determined that the doctrine of collateral estoppel was inapplicable under the circumstances of this case.

The decision is affirmed and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.

       “The denial of a motion for summary judgment based on a claim of collateral estoppel is appealable immediately because such a claim is a civil law analogue to the criminal law’s defense of double jeopardy . . . .” (Internal quotation marks omitted.) Clukey v. Sweeney, 112 Conn. App. 534, 537 n.1, 963 A.2d 711 (2009).

       General Statutes § 20-325a (a) provides: “No person who is not licensed under the provisions of this chapter, and who was not so licensed at the lime the person performed the acts or rendered the services for which recovery is sought, shall commence or bring any action in any court of this state, after October 1, 1971, to recover any commission, compensation or other payment with respect to any act done or service rendered by the person, the doing or rendering of which is prohibited under the provisions of this chapter except by persons duly licensed under this chapter.”

       General Statutes § 20-311 (3) provides: “ ‘Engaging in the real estate business’ means acting for another and for a fee, commission or other valuable consideration in the listing for sale, selling, exchanging, buying or renting, or offering or attempting to negotiate a sale, exchange, purchase or rental of, an estate or interest in real estate or a resale of a mobile manufactured home, as defined in subdivision (1) of section 21-64, or collecting upon aloan secured orto be secured by amortgage or other encumbrance upon or transfer of real estate . . . .”

       General Statutes § 52-278d (a) provides: “The defendant shall have the right to appear and be heard at the hearing. The hearing shall be limited to a determination of (1) whether or not there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff, (2) whether payment of any judgment that may be rendered against the defendant is adequately secured by insurance, (3) whether the property sought to be subjected to the prejudgment remedy is exempt from execution, and (4) if the court finds that the application for the prejudgment remedy should be granted, whether the plaintiff should be required to post a bond to secure the defendant against damages that may result from the prejudgment remedy or whether the defendant should be allowed to substitute a bond for the prejudgment remedy. If the court, upon consideration of the facts before it and taking into account any defenses, counterclaims or set-offs, claims of exemption and claims of adequate insurance, finds that the plaintiff has shown probable cause that such a judgment will be rendered in the matter in the plaintiffs favor in the amount of the prejudgment remedy sought and finds that a prejudgment remedy securing the judgment should be granted, the prejudgment remedy applied for shall be granted as requested or as modified by the court. The court shall not grant the prejudgment remedy if the prejudgment remedy or application for such prejudgment remedy was dismissed or withdrawn pursuant to the provisions of section 52-278j.” (Emphasis added.)

       In response to the question by the defendant’s counsel regarding whether he could complete cross-examination of the plaintiffs witness, the court stated: “It’s not the trial. . . . We don’t do the trial in these cases. You know ... I have enough facts.”

       In its brief, the defendant also contends that the plaintiff had a full and fair opportunity to litigate the issue of whether it had engaged in real estate business because, in its opposition to the defendant’s motion for summary judgment, the plaintiff failed to provide a factual basis from which to conclude that any evidence would be proffered at a trial on the merits that would be any different from the evidence that was offered at the prejudgment remedy hearing. Because we conclude that the prejudgment remedy hearing did not afford the plaintiff an opportunity to fully and fairly litigate the issue, it is inconsequential that the plaintiff did not produce additional or different evidence in opposition to the defendant’s motion for summary judgment.


author: DiPENTIMA, C. J.

text:
    GERALDINE F. WARNER v. CARISA MARIE BICKNELL
    (AC 31300)
    DiPentima, C. J., and Bear and Stoughton, Js.
    Argued December 1, 2010
    officially released February 15, 2011

      Michael D. Day, for the appellant (defendant).

      Claudette J. Narcisco, for the appellee (plaintiff).
   Opinion

DiPENTIMA, C. J.

“[Although our statutory scheme does provide for visitation by third persons, the right of third parties to seek such visitation is limited by the rights of fit parents to raise their children free from interference.” Carrier v. King, 105 Conn. App. 391,392, 939 A.2d 1, cert. denied, 286 Conn. 904, 943 A.2d 1101 (2008); see generally Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000). Because “[t]he family entity is the core foundation of modem civilization” and parents have a “constitutionally protected interest ... to raise their children without interference”; Roth v. Weston, 259 Conn. 202, 228, 789 A.2d 431 (2002); our Supreme Court has set an “admittedly high hurdle” for a third party seeking visitation against the wishes of a fit parent. Id., 229. The defendant, Carisa Marie Bicknell, appeals from the judgment of the trial court granting an application for visitation with her minor child to the plaintiff, Geraldine F. Warner, the child’s paternal grandmother, pursuant to General Statutes § 46b-59. The dispositive issue in this appeal is whether the plaintiff satisfied the two part test for standing established by our Supreme Court in Roth v. Weston, supra, 234-35. We conclude that the plaintiff failed to meet this test and lacked standing. Accordingly, we reverse the judgment of the trial court.

The following factual and procedural history is relevant to the resolution of the defendant’s appeal. On January 18, 2008, the plaintiff filed an application for visitation with the minor child. On this form, the plaintiff indicated that Connecticut was the home state of the child, the child had lived in Connecticut for the past six months, the child and at least one parent had a significant connection to Connecticut, and no other state had an interest in the case and that it was in the best interest of the child for a Connecticut court to hear the case. The plaintiff did not claim that she had a relationship with the child that is similar in nature to a parent-child relationship and that a denial of visitation would cause real and significant harm to the child. On the same date, the plaintiff filed a motion for an order of visitation, pendente lite.

On February 28, 2008, the parties entered into a temporary agreement under which the plaintiff was entitled to a telephone call with the child on weeknights and permitted to send the child letters and cards. Further, the parties agreed to apply for supervised visits through the Southern Connecticut State University Family Clinic program (program). The parties also agreed to return to court with a report from the program. In May, 2008, the court ordered a continuation of supervised visits.

On December 1, 2008, the parties entered into a second agreement, under which the plaintiff would have two supervised visits per month through the program. The defendant was responsible for the cost of the program. The court approved this agreement. On December 21, 2008, the parties appeared at a hearing before the court. After a preliminary discussion, the court suggested that further details of an agreement might be worked out with the family relations division of the Superior Court. After finalizing the details, the agreement was made an order of the court. The court did not schedule a further hearing but, instead, indicated that the parties would not need to return to court unless an issue arose.

On April 3, 2009, the plaintiff and her counsel appeared before the court for the purpose of obtaining unsupervised visitation. The defendant was not present at this proceeding. The court scheduled the matter for a hearing. On April 7,2009, notice was sent to the parties and the plaintiffs attorney for a May 11, 2009 hearing. At the hearing, after discussion off the record, the court indicated that at the status conference on April 3, 2009, the hearing was scheduled for May 11, 2009. The court then proceeded to hear testimony from the plaintiff.

After the hearing, the court issued a memorandum of decision, in which it found that the defendant had received notice of the hearing and awarded the plaintiff unsupervised visitation with the child. In addition, the plaintiff received weekly overnight visits during the summer and, during the school year, weekly visits with overnight visits two weekends per month. The court also ordered that the child’s father was not permitted to be present during the visits without the express agreement of the mother. Finally, the plaintiffs counsel was instructed to serve the defendant with the court’s orders.

On May 18, 2009, the defendant filed a motion for modification of the court’s orders. The defendant alleged that she did not receive notice of the May 11, 2009 hearing and requested that the plaintiffs visitation be terminated. On May 27, 2009, the defendant, now represented by counsel, filed a motion to reconsider and reargue pursuant to Practice Book § 11-11. She again alleged that she had not received notice regarding the May 11, 2009 proceeding. The court denied the defendant’s motion on June 2, 2009. On June 19, 2009, the defendant filed a motion for reconsideration of the court’s June 2, 2009 order. The court also denied this motion. This appeal followed.

On appeal, the defendant claims that the plaintiff failed to satisfy the two part test for standing established by our Supreme Court in Roth v. Weston, supra, 259 Conn. 202. We begin, therefore, with a discussion of our jurisprudence relating to visitation with minor children by third parties contrary to the wishes of a fit parent.

In Roth, the plaintiffs, the maternal aunt and grandmother, sought visitation with the minor children of the defendant father. Id., 204. The father had prevented the aunt and grandmother from visitation with the children following the suicide of the children’s mother. Id., 206. The trial court granted the plaintiffs’ applications for visitation and the defendant appealed. Id., 209.

Our Supreme Court examined “the jurisdictional prerequisite of standing, that is, which persons may intrude upon a parent’s autonomy. Standing 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. . . . These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury [that the complainant] has suffered or is likely to suffer, in an individual or representative capacity. Such a personal stake in the outcome of the controversy . . . provides the requisite assurance of concrete adverseness and diligent advocacy. ... If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause.” (Citation omitted; internal quotation marks omitted.) Id., 218-19. Due to the fundamental right implicated in such cases, this standing requirement is narrowly drawn. Id., 219.

Our Supreme Court then set forth the specifics of this safeguard. “In sum, therefore, we conclude that there are two requirements that must be satisfied in order for a court: (1) to have jurisdiction over a petition for visitation contrary to the wishes of a fit parent; and (2) to grant such a petition. First, the petition must contain specific, good faith allegations that the petitioner has a relationship with the child that is similar in nature to a parent-child relationship. The petition must also contain specific, good faith allegations that denial of the visitation will cause real and significant harm to the child. As we have stated, that degree of harm requires more than a determination that visitation would be in the child’s best interest. It must be a degree of harm analogous to the kind of harm contemplated by [General Statutes] §§ 46b-120 and 46b-129, namely, that the child is ‘neglected, uncared-for or dependent.’ The degree of specificity of the allegations must be sufficient to justify requiring the fit parent to subject his or her parental judgment to unwanted litigation. Only if these specific, good faith allegations are made will a court have jurisdiction over the petition.

“Second, once these high jurisdictional hurdles have been overcome, the petitioner must prove these allegations by clear and convincing evidence. Only if that enhanced burden of persuasion has been met may the court enter an order of visitation. These requirements thus serve as the constitutionally mandated safeguards against unwarranted intrusions into a parent’s authority.” (Emphasis added.) Id., 234-35.

Our case law is clear that, absent the allegations identified by the Roth court, the court must dismiss a third party’s application for visitation. Id., 240; see also Denardo v. Bergamo, 272 Conn. 500, 514, 863 A.2d 686 (2005); Crockett v. Pastore, 259 Conn. 240,250, 789 A.2d 453 (2002); Fennelly v. Norton, 103 Conn. App. 125,142, 931 A.2d 269 (“[i]f the application [for visitation] does not contain such allegations, the court lacks subject matter jurisdiction and the application must be dismissed”), cert. denied, 284 Conn. 918, 931 A.2d 936 (2007); Clements v. Jones, 71 Conn. App. 688, 696, 803 A.2d 378 (2002).

We therefore must examine the record to determine whether the application contained specific, good faith allegations that the plaintiff had a relationship with the child similar in nature to a parent-child relationship and that it contained specific, good faith allegations that the denial of visitation would cause real and significant harm to the child. See Fennelly v. Norton, supra, 103 Conn. App. 131-32. A determination regarding a trial court’s subject matter jurisdiction is a question of law and, therefore, we employ the plenary standard of review and decide whether the court’s conclusions are legally and logically correct and supported by the facts in the record. Clements v. Jones, supra, 71 Conn. App. 690. “ [I]t is well established that a reviewing court properly may address jurisdictional claims that neither were raised nor ruled on in the trial court. Indeed, [o]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented. . . . The court must fully resolve it before proceeding further with the case.” (Internal quotation marks omitted.) Deutsche Bank National Trust Co. v. Bialobrzeski, 123 Conn. App. 791, 798,3 A.3d 183 (2010). Finally, we note that “[i]t is hornbook law that the parties cannot confer subject matter jurisdiction on a court by consent, waiver, silence or agreement.” Hayes v. Beresford, 184 Conn. 558, 562, 440 A.2d 224 (1981); see also Bender v. Bender, 292 Conn. 696, 704 n.5, 975 A.2d 636 (2009).

In her application for visitation, the plaintiff did not allege that she had a parent-like relationship with the child and that the denial of visitation would cause real and significant harm to the child. Additionally, there is nothing in the record containing specific, good faith allegations that the plaintiff had a parent-like relationship with the minor child similar in nature to a parent-child relationship, and that the denial of visitation would cause real and significant harm to the child. The defendant’s objection to visitation by the plaintiff was manifest in the May 18, 2009 motion for modification in which she expressly stated, “I would like to terminate visitation with [the plaintiff].”

The plaintiff argues that the defendant had consented to visitation, as demonstrated by the visitation agreements. She further maintains that she was not required to satisfy the Roth pleading requirements. This argument overlooks our Supreme Court’s decision in Denardo v. Bergamo, supra, 272 Conn. 500. In that case, the intervening grandparents were awarded visitation prior to the Roth decision. Id., 503. The defendant parent, subsequent to the release oí Roth, moved to modify and to terminate visitation. Id. The trial court granted the parent’s application and the grandparents appealed. Id.

Our Supreme Court agreed with the parent’s arguments that (1) Roth applied retroactively and (2) “Roth should apply equally irrespective of whether a grandparent moves to secure an initial order of visitation or a parent moves to modify such an order, and that the [grandparents’] failure to satisfy the Roth standards mandated a termination of the visitation order.” (Emphasis added.) Id., 509. “Our conclusion that Roth applies retrospectively leads to the further conclusion that the trial court was compelled to grant the [parent’s] motion to terminate visitation. The [grandparents] failed to allege or attempt to prove that their relationship with the child was similar to a parent-child relationship and that denial of visitation would cause real and significant harm to the child. Without those specific, good faith allegations or such proof, either at the time of the filing of their petition or at the time of the hearing on the defendant’s motion, the trial court’s prior order of visitation was rendered without subject matter jurisdiction. Accordingly, the [parent’s] motion to modify and terminate the [grandparents’] visitation rights properly was granted.” Id., 514.

We further note that our jurisprudence regarding subject matter jurisdiction is contrary to the plaintiff’s argument. “[A] court lacks discretion to consider the merits of a case [or claim] over which it is without jurisdiction .... The objection of want of jurisdiction may be made at any time . . . [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention. . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings.” (Internal quotation marks omitted.) Zoll v. Zoll, 112 Conn. App. 290,297,962 A.2d 871 (2009); see also In re DeLeon J., 290 Conn. 371, 376, 963 A.2d 53 (2009) (well established that reviewing court properly may address jurisdictional claims that neither were raised nor ruled on by trial court and that once question of jurisdiction raised, it must be resolved before proceeding further); Fennelly v. Norton, supra, 103 Conn. App. 136-37 (once issue of subject matter jurisdiction raised, it must be resolved before addressing merits of case); Rathblott v. Rathblott, 79 Conn. App. 812, 816-17, 832 A.2d 90 (2003) (parties cannot create subject matter jurisdiction through consent or waiver).

We conclude, on the basis of precedent from our Supreme Court and the relevant case law on subject matter jurisdiction, that the plaintiff was not relieved of the requirements of Roth simply because there previously had been an agreement regarding visitation. In the absence of specific, good faith allegations that the plaintiff had a parent-like relationship with the child and that the denial of visitation would cause real and significant harm to the child, the court lacked jurisdiction to consider the plaintiffs application for visitation.

The judgment is reversed and the case is remanded with direction to render judgment dismissing the plaintiffs application for visitation for lack of subject matter jurisdiction.

In this opinion the other judges concurred.

       As a result, we need not reach the other issues raised by the defendant in her appeal.

       A state marshal served the defendant with a copy of the application for visitation on February 4, 2008.

       The following discussion occurred:
      “[The Plaintiffs Counsel]: Could we have a follow-up date maybe three or four months from now?
      “The Court: All right.
      “[The Defendant]: Do we have to come back?
      “The Court: Why don’t we just leave it that if there’s a problem instead of just having somebody have to take the time off from work—
      “[The Defendant]: No, just leave it, yes. Thank you.
      “The Court: If there’s no problem we don’t need to come back, but if your client doesn’t think that she’s getting the two a month [visits] as provided for in the agreement then you can have a motion and set it down. Okay.
      “[The Plaintiffs Counsel]: Okay. Very good.”

       The unsupervised visitation was to begin at the conclusion of the school year.

       “The trial court concluded that the standards set forth in Roth . . . were applicable to the [parent’s] motion to modify and terminate the [grandparents’] visitation, and that the [grandparents] had failed to allege or present evidence that the [parent] was . . . unfit ... or that the denial of visitation would result in significant harm to the child.” Denardo v. Bergamo, supra, 272 Conn. 508.


author: FLYNN, J.

text:
    STATE OF CONNECTICUT v. COURTNEY BRYAN
    (AC 31654)
    Lavine, Robinson and Flynn, Js.

      Argued November 29, 2010
    officially released February 15, 2011

      Glenn W. Falk, special public defender, with whom, on the brief, was Jennifer Rae Taylor, law student intern, for the appellant (defendant).

      Sarah Hanna, assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Paul N. Rotiroti, senior assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, J.

The defendant, Courtney Bryan, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-59 (a) (1). The court merged both convictions as counseled by the rule of State v. Chicano, 216 Conn. 699, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991), and sentenced the defendant to six years imprisonment. On appeal, the defendant claims that the trial court erred in failing to instruct the jury on defense of others under General Statutes (Rev. to 2007) § 53H-19 in accordance with a written request to charge. We agree that the court improperly refused to charge on that defense and, accordingly, reverse the judgment and remand the case for a new trial.

The following evidence that the jury heard is pertinent. Abdelmoutalib Sofiane, the person who the jury found had been assaulted, and Farrah Lawrence had formerly dated for approximately two years after which Lawrence refused to see Sofiane any further. The defendant was the longtime friend and current boyfriend of Lawrence on March 1, 2007.

Here, some of the previous violent action between Sofiane directed at both Lawrence and the defendant after Lawrence’s breakup with Sofiane becomes pertinent. Lawrence testified that she ended the dating relationship with Sofiane after Sofiane became threatening and abusive. After coming to her apartment uninvited, he smashed a television set, broke a telephone and pushed her. The defendant was made aware of this incident immediately afterwards by telephone call from Lawrence. Sofiane arrived at Lawrence’s home again, shouting at her and stabbing himself. Again, Lawrence made known this incident to the defendant. On another occasion, Sofiane tried to run the car in which Lawrence and the defendant were riding off the road, yelling at them and spitting at their car. As they proceeded farther down the road, Sofiane blocked their path with his vehicle and shouted that he was going to “f— [them] up,” which resulted in a complaint against Sofiane being made to the police. According to Lawrence, a couple of weeks after the road incident, after being refused admittance to Lawrence’s home, Sofiane tried to head butt a glass door to gain entry, but when that did not succeed, he proceeded to break Lawrence’s bedroom window with his fist and invaded Lawrence’s home causing Lawrence to run out the front door and the police to come to the scene. Again, Lawrence made known this occurrence to the defendant. In a later incident, Sofiane threatened to kill Lawrence. Specifically, he said that if she got him into trouble “so he couldn’t get his citizenship, he would kill [her] and run back to Morocco.”

It was against this evidentiary backdrop of violence, threats and abuse attributed to Sofiane that the record testimony of the defendant must be viewed as he saw Sofiane enter the parking lot of Lincoln Technical Institute (Lincoln) on March 1, 2007. On that day, Lawrence and the defendant traveled to Lincoln where Lawrence was enrolled as a student. The defendant stayed in the automobile. Sofiane then drove into the same parking lot, parking his vehicle near Lawrence’s car. Sofiane then drove away but returned about five minutes later. According to the defendant, Sofiane approached the car, lifted his shirt and revealed a firearm and made threats as to both the defendant and Lawrence. He called Lawrence a “bitch” and said he was going to “get her.” The defendant also testified that when Sofiane returned, Sofiane opened the door of the automobile in which the defendant sat and said he was going into the school building to kill Lawrence. As Sofiane walked toward the school and entered the building, the defendant claimed to have followed him and encountered Sofiane coming back out of the door. The defendant also testified that Sofiane spit in his face and grabbed him around the neck while at the same time, “he went for his waistband” where he previously had displayed a gun. The two men then grappled, and, in the defendant’s version of events, Sofiane was stabbed with a knife that the defendant had removed from the glove compartment of Lawrence’s vehicle. The defendant testified that the stabbing was accidental, but he also testified that he was acting in defense of himself and of Lawrence. The defendant first testified that he did not think he had to stab Sofiane but then said he did so in defense of himself and later said also that he did so in defense of Lawrence because he was afraid of what Sofiane might do to Lawrence and him.

The following aspect of the procedural history is relevant. Citing this court’s decision in State v. Darrow, 107 Conn. App. 144, 944 A.2d 984 (2008), and State v. Miller, 55 Conn. App. 298, 739 A.2d 1264 (1999), cert. denied, 252 Conn. 923, 747 A.2d 519 (2000), the defendant claimed entitlement to this defense of others instruction even when the defenses raised might be inconsistent and requested an instruction pursuant to § 2.8-1 of the criminal jury instructions published by the judicial branch. The trial court did not instruct the jury on the defense of others defense requested. On appeal, neither the defendant nor the state claims that the request was waived. The defendant argues that the court’s refusal to give the requested instruction was improper and asks that the judgment of conviction be reversed and that the matter be remanded for a new trial. In response, the state argues that the evidence did not support a defense of others instruction because no rational juror could have found that the defendant acted in defense of Lawrence and that any error in failing to give the requested instruction was harmless.

In reviewing entitlement to a jury instruction on self-defense, defense of others or defense of premises, the reviewing court must view the evidence in the light most favorable to the defendant requesting the charge. State v. Terwilliger, 105 Conn. App. 219, 224 n.5, 937 A.2d 735 (2008), aff'd, 294 Conn. 399, 984 A.2d 721 (2009).

The defendant’s principal claim on appeal is that the trial court erred in failing to instruct the jury on the defense of others under General Statutes (Rev. to 2007) § 53a-19 in accordance with his written request. Specifically, the defendant argues that on the basis of the evidence presented, viewed in the light most favorable to the defendant, a jury reasonably could have found that the defendant was protecting Lawrence when he stabbed Sofiane. In response, the state argues that there is no rational view of the evidence to show that the defendant actually believed that Sofiane was about to use force on Lawrence or that any such belief reasonably would warrant such an instruction. Particularly, the state argues that the defendant’s belief that Lawrence was in danger became unreasonable when the defendant viewed Sofiane leaving the building. We agree with the defendant.

The legal principles that are applicable to the defendant’s claim are well established. “[T]he fair opportunity to establish a defense is a fundamental element of due process of law .... This fundamental constitutional right includes proper jury instructions on the elements of self-defense so that the jury may ascertain whether the state has met its burden of proving beyond a reasonable doubt that the assault was not justified. . . . Thus, [i]f the defendant asserts [self-defense] and the evidence indicates the availability of that defense, such a charge is obligatory and the defendant is entitled, as a matter of law, to [an] . . . instruction [on self-defense]. . . . Before an instruction is warranted, however, [a] defendant bears the initial burden of producing sufficient evidence to inject self-defense into the case. ... To meet that burden, the evidence adduced at trial, whether by the state or the defense, must be sufficient [if credited by the jury] to raise a reasonable doubt in the mind of a rational juror as to whether the defendant acted in self-defense. . . . This burden is slight, however, and may be satisfied if there is any foundation in the evidence [for the defendant’s claim], no matter how weak or incredible .... Furthermore, in reviewing the trial court’s rejection of the defendant’s request for a jury charge on self-defense, we must adopt the version of the facts most favorable to the defendant which the evidence would reasonably support.” (Citations omitted; internal quotation marks omitted.) State v. Lewis, 245 Conn. 779, 810, 717 A.2d 1140 (1998); see also State v. Terwilliger, 294 Conn. 399, 411-12, 984 A.2d 721 (2009).

“The Connecticut test for the degree of force in self-defense is a subjective-objective one. The jury must view the situation from the perspective of the defendant. Section § 53a-19 (a) requires, however, that the defendant’s belief ultimately must be found to be reasonable. . . . Moreover, the evidence must be such that the jury must not have to resort to speculation in order to find that the defendant acted in justifiable self-defense.” (Citations omitted; internal quotation marks omitted.) State v. Lewis, supra, 245 Conn. 811.

“It is true that [i]f the defendant asserts a recognized legal defense and the evidence indicates the availability of that defense, such a charge is obligatory and the defendant is entitled, as a matter of law, to a theory of defense instruction. . . . State v. Cruz, 75 Conn. App. 500, 510, 816 A.2d 683 (2003), aff'd, 269 Conn. 97, 848 A.2d 445 (2004). ... A defendant’s initial burden is slight, for he has no burden of persuasion; he merely has to introduce sufficient evidence to warrant presenting his claim of self-defense to the jury. State v. Ramos, 271 Conn. 785, 800, 860 A.2d 249 (2004); State v. Singleton, 97 Conn. App. 679, 691, 905 A.2d 725, cert. granted on other grounds, 280 Conn. 949, 912 A.2d 484 (2006). Thus, [a] court should view the evidence most favorably to the defendant and should give the charge if the evidence is sufficient, if credited by the jury, to raise a reasonable doubt in the mind of a rational juror as to whether the defendant acted in self-defense. State v. Terwilliger, [supra, 105 Conn. App. 224 n.5].” (Citations omitted; internal quotation marks omitted.) State v. Darrow, supra, 107 Conn. App. 147-48; see also State v. Terwilliger, supra, 294 Conn. 408.

We first address the defendant’s argument that on the basis of the evidence viewed in the light most favorable to the defendant, a reasonable jury could have found that the defendant was protecting Lawrence when he stabbed Sofiane. Pursuant to § 53a-19, in order to raise a defense of others defense, the defendant was required to produce evidence that he reasonably believed that deadly physical force was necessary to prevent Sofiane from committing or attempting to commit a crime of violence against Lawrence. The standard set forth in Lewis governs our resolution of this issue. The defendant’s “burden is slight, however, and may be satisfied if there is any foundation in the evidence [for the defendant’s claim], no matter how weak or incredible . . . .” (Internal quotation marks omitted.) State v. Lewis, supra, 245 Conn. 810. Here, the direct and circumstantial evidence presented by the defendant at trial was sufficient to support his request for a defense of others charge. The direct evidence presented by the defendant met the low threshold for giving the jury instruction. The defendant testified that he followed Sofiane, saw Sofiane entering the building and that Sofiane carried a firearm. He also testified that Sofiane threatened to kill Lawrence immediately before heading into the building and that he, in turn, followed Sofiane. Once the defendant testified that he believed Sofiane was going after Lawrence inside the building, after Sofiane had threatened to kill her, it was up to the jury, not the court, to resolve the claim of defense of others as a possible justification for the assault. Additionally, there was ample circumstantial evidence to support the defendant’s request. The lengthy history of the violent and abusive relationship between Sofiane and Lawrence, about which the defendant testified he was fully aware, was relevant to the defendant’s request to charge. It was against this evidentiary backdrop of violence, threats and abuse attributed to Sofiane that the record testimony of the defendant must be viewed as he saw Sofiane enter the parking lot on March 1, 2007, and proceed toward the building after Sofiane had announced to the defendant that he was going to kill Lawrence.

In response to the defendant’s defense of others claim, the state argues that no rational juror could conclude that the defendant still believed Lawrence was in danger because Sofiane was exiting the building when the altercation took place. In support, the state points to evidence that Sofiane turned around right at the doorway of the building when the defendant was following him inside. We can infer, and the state agreed at oral argument, that the entire incident occurred in a short period of time because the altercation occurred at the doorway of the premises. For the state’s argument to prevail, however, Sofiane’s action must be construed as Sofiane’s abandonment of his purpose of entering the building to harm Lawrence. This construction puts the evidence in a light most favorable to the state and not to the defendant as our review standard requires. In light of the evidence that Sofiane threatened to kill Lawrence before heading into the building, the short time period in which the altercation took place, and the history of Sofiane’s threatening and abusive behavior toward Lawrence, Sofiane’s action of turning around at the doorway does not mean that the only rational inference a jury could make was that Sofiane abandoned his purpose and that the imminent threat to Lawrence was neutralized. Viewing the facts most favorably to the defendant, as we must; id.; we conclude that a rational juror could conclude that the defendant still believed Lawrence was in danger.

The state further argues that because Lawrence was not physically present at the altercation, the threat to her was not imminent, and, therefore, a charge on the defense of others was not justified. Although Lawrence was out of sight at the moment the altercation took place, the defendant knew she was in the building, and Sofiane had just stated that he was going to kill her. Furthermore, Sofiane had demonstrated to the defendant that he had a weapon. On the basis of this testimony, history of abuse and threatening conduct by Sofiane toward Lawrence, we conclude that the defendant presented sufficient evidence to entitle him to the charge he requested and that this issue was wrongly removed from the jury’s consideration.

We next address the state’s argument that the defendant’s inconsistent testimony regarding whether he was in fear for himself or Lawrence at the time of the altercation obviates any construction of the facts that would support a defense of others instruction. In response, the defendant contends that evidence and inferences running counter to a defense do not render a defense unavailable. Particularly, the defendant argues that he testified that he acted in defense of himself as well as in fear of what Sofiane might do to Lawrence. We agree with the defendant.

At trial, the defendant testified that the stabbing was accidental but then testified that he was acting in defense of himself and Lawrence. He first stated that he did not think he had to stab Sofiane but then said he did so in defense of himself and later said he did so also in defense of Lawrence because he was afraid of what Sofiane might do to Lawrence and him. Because it was the function of the jury to believe or to disbelieve the defendant’s testimony or any part of it, his assertions did not preclude a jury instruction on defense of others as provided by § 53a-19, the self-defense statute. “The jury is free to juxtapose conflicting versions of events and to determine which is more credible. . . . [T]he [jury] can disbelieve any or all of the evidence . . . and can construe [the] evidence in a manner different from the parties’ assertions.” (Citations omitted; internal quotation marks omitted.) State v. Person, 236 Conn. 342, 347, 673 A.2d 463 (1996). Rather, a jury may be instructed on a requested defense theory, even if the defendant has testified inconsistently, if there is sufficient evidence to warrant the instruction. See State v. Harris, 46 Conn. App. 216, 236, 700 A.2d 1161 (“[a] defendant is entitled to have instructions presented relating to any theory of defense for which there is any foundation in the evidence, no matter how weak or incredible” [internal quotation marks omitted]), cert. denied, 243 Conn. 930, 701 A.2d 662 (1997).

We conclude that the defendant met his burden of providing an evidentiary foundation to inject the issue of defense of others into the case. We further conclude, therefore, that the court improperly refused to charge on the defense of others pursuant to General Statutes (Rev. to 2007) § 53a-19.

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

In this opinion the other judges concurred.

       Self-defense is defined in General Statutes (Rev. to 2007) § 53a-19 and provides: “(a) Except as provided in subsections (b) and (c) of this section, a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.
      “(b) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using deadly physical force upon another person if he or she knows that he or she can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he or she is in his or her dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he or she is a peace officer or a special policeman appointed under section 29-18b or a private person assisting such peace officer or special policeman at his or her direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he or she abstain from performing an act which he or she is not obliged to perform.
      “(c) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force, or (3) the physical force involved was the product of a combat by agreement not specifically authorized by law.”

       The defendant’s request to charge on the defense of others was as follows: “The defendant requests the instructions pursuant to Section 2.8-1 of the approved instructions of the Connecticut Judicial Branch. State v. Darrow, [supra, 107 Conn. App. 144]. See also State v. Miller, [supra, 55 Conn. App. 298] (stating that the defendant is permitted to raise inconsistent defenses). Evidence to which the instruction applies: The defendant presented evidence of prior threatening conduct by the complainant against the defendant’s girlfriend. Further, the defendant presented evidence of conduct by the complainant on March 1, 2007 giving the defendant a reasonable belief that the complainant was about to inflict physical force against his girlfriend.”

       At a charging conference, the court, and not the jury, has heard the request related to the evidence that was offered. Since the jury has heard the evidence relating to that request but made no findings prior to deliberation, the phrase “no matter how weak or incredible” must refer to a determination made by the court. Therefore, even if the court thinks the evidence is “incredible,” the court is required to give the charge if there is some basis in the evidence, however weak or thin. See State v. Lewis, supra, 245 Conn. 810.

       Although the jury rejected the defendant’s defense of self-defense of person, namely, himself, this would not preclude the jury from consideration of the defense of others defense. Self-defense includes both defense of one’s person and the defense of others. General Statutes (Rev. to 2007) § 53a-19; see State v. Terwilliger, supra, 105 Conn. App. 219.

       “Though the jury was presented with different versions of the events and multiple confessions, choosing among competing inferences and determining the credibility of the confessions are functions within its exclusive province. State v. Iban C., 275 Conn. 624, 634, 881 A.2d 1005 (2005) (credibility determinations within exclusive province of jury); State v. Mungroo, 104 Conn. App. 668, 673, 935 A.2d 229 (2007) (choosing among competing inferences within exclusive province of jury), cert. denied, 285 Conn. 908, 942 A.2d 415 (2008); see also State v. Martin, 285 Conn. 135, 148, 939 A.2d 524 (2008) (jury permitted to consider any proven fact in combination with other proven facts and cumulative effect of all evidence presented).” State v. Darrow, supra, 107 Conn. App. 151-52.