author: BEAR, J.

text:
    MIDLAND FUNDING, LLC v. MICHAEL TRIPP, SR.
    (AC 32914)
    Bear, Espinosa and Pellegrino, Js.
    Argued January 11 —
    officially released March 13, 2012

      Jeanine M. Dumont, with whom was Heath A. Tib-erio, for the appellant (plaintiff).
   Opinion

BEAR, J.

In this amended appeal, the plaintiff, Midland Funding, LLC, appeals from the judgment of the trial court, rendered after a hearing in damages, awarding it the sum of $7152.92 plus $352 in costs for its claim against the defendant, Michael Tripp, Sr., but denying it postjudgment interest pursuant to General Statutes §§ 37-3a and 52-356d (e). On appeal, the plaintiff claims that the court erred in refusing to enter judgment in accordance with the parties’ stipulation. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiffs claim. By complaint dated August 25, 2010, the plaintiff sued the defendant to collect a credit card debt that the defendant owed to Citibank in the amount of $7352.92. The plaintiff alleged that it had purchased title to this debt from Citibank for valuable consideration, and it sought principal, interest, attorney’s fees and costs from the defendant. On October 29, 2010, the plaintiff filed a motion for judgment in accordance with a stipulation of the parties in the amount of $7152.92, which reflected a deduction for a $200 payment made by the defendant, plus $352 for costs. The stipulation also provided that postjudgment interest would accrue at “the statutory rate.” On November 8, 2010, the court, Sheedy, J., denied the motion for judgment, concluding: “Not only does the ‘[stipulation’ contain a reference to statutory interest without specifying the same (and therefore, it is unlikely the debtor knows the interest rate) but the defendant’s signature is not notarized.”

On November 18, 2010, the plaintiff filed another motion for judgment in accordance with the stipulation, stating that the court improperly had denied its original motion because (1) postjudgment interest is automatic and (2) there is no authority for the court to require that the defendant’s signature on the stipulation be notarized. On November 29, 2010, the court again denied the plaintiffs motion for judgment in accordance with the stipulation, in part, for the same reasons it had denied the earlier motion.

On December 28, 2010, the defendant was defaulted for failure to plead, and, on January 26, 2011, the plaintiff filed a motion for judgment and order of payments, requesting that the court render judgment for the plaintiff against the defendant for $7152.92 in damages, $352 for costs and postjudgment interest pursuant to §§ 37-3a and 52-356d (e). The plaintiff requested that the defendant be ordered to pay the nominal sum of $35 per week. On February 7, 2011, the court denied this motion, concluding that certain documents that the plaintiff submitted to the court were not the same as those previously given to the defendant, the amount of principal debt on a typewritten document varied from the principal claimed in the motion for judgment and that the debt already had been “charged off’ by the plaintiff.

On February 7, 2011, the court issued an articulation of its reasons for denying the plaintiffs October 29,2010 motion for judgment in accordance with the parties’ stipulation. The court explained that the defendant was self-represented and that the stipulation stated that interest would accrue on the unpaid balance of the debt at the “statutory rate,” yet it failed to identify any statute or specific rate. It also explained that the stipulation was silent as to the fact that the court had the discretion to decline to order postjudgment interest as a matter of equity. The court further articulated that without a notarized signature, it had no way of determining whether the signature on the stipulation was that of the defendant, and, finally, the court explained that the stipulation called for payments in excess of the minimal amount without any indication that the defendant had been told that the court had the discretion to order lower payments.

On March 24, 2011, the plaintiff filed another motion for judgment and order of payments. In that motion, the plaintiff again requested that the court enter judgment against the defendant in the amount of $7152.92 for damages, $352 for costs, and postjudgment interest pursuant to §§ 37-3a and 52-356d (e). The plaintiff also requested that the defendant be ordered to pay the nominal sum of $35 per week. Following a hearing in damages, at which the defendant did not appear, the court, on April 6, 2011, awarded the plaintiff $7152.92 in damages, $352 in costs and no postjudgment interest. The defendant was ordered to pay $35 per week on the judgment. This appeal followed.

On appeal, the plaintiff claims that the court improperly refused to render judgment in accordance with the stipulation of the parties. Although the plaintiff makes several arguments in support of its claim, we conclude that the court acted within its discretion in refusing to approve the stipulation and to render judgment in accordance therewith.

“A stipulated judgment is a contract of the parties acknowledged in open court and ordered to be recorded by a court of competent jurisdiction. Gillis v. Gillis, 214 Conn. 336, 339, 572 A.2d 323 (1990); Bryan v. Reynolds, 143 Conn. 456, 460, 123 A.2d 192 (1956). While a stipulated or consent judgment is not a judicial determination of any litigated right; Gillis v. Gillis, supra [339]; Bryan v. Reynolds, supra [460]; [it] is a judicial function and an exercise of the judicial power to render judgment on consent. A judgment upon consent is a judicial act. Pope v. United States, 323 U.S. 1, 12, 65 S. Ct. 16, 89 L. Ed. 3 (1944). There is no doubt that the parties may enter into any agreement they choose. By seeking to transform their private agreement into a judgment of court, however, the parties invoke the judicial power of the court. Such a judicial act, like all judicial acts, necessarily involves the court’s exercise of its powers of law and equity. The parties cannot, by giving each other consideration, compel a court to render a judgment in accordance with a stipulation that the court, in the exercise of its discretion, is unwilling to accept. System Federation No. 91, Railway Employees’ Department, AFL-CIO v. Wright, 364 U.S. 642, 651, 81 S. Ct. 368, 5 L. Ed. 2d 349 (1961). [A] judge is not a mere umpire in a forensic encounter but a minister of justice, and it follows that an agreement is not necessarily binding on the court and may justifiably be disregarded in a particular case.” (Internal quotation marks omitted.) Bank of Boston Connecticut v. DeGroff 31 Conn. App. 253, 257, 624 A.2d 904 (1993) (Freedman, J., concurring in part and dissenting in part). “Ordinarily . . . stipulations of the parties should be adopted by the court. Central Coat, Apron & Linen Service, Inc. v. Indemnity Ins. Co., 136 Conn. 234, 236, 70 A.2d 126 (1949). If, for some reason, [however] the court cannot adopt the stipulation of the parties, it should state its disapproval of the stipulation and the reasons for its disapproval on the record. The court should not proceed to judgment, including an order for payments, without offering the parties an opportunity to present evidence relevant to that judgment. See Bartley v. Bartley, 27 Conn. App. 195, 197-98, 604 A.2d 1343 (1992).” Central Connecticut Teachers Federal Credit Union v. Grant, 27 Conn. App. 435, 438, 606 A.2d 729 (1992).

In this case, the court, in its responses to the October 29 and November 18,2010 motions, set forth its reasons for declining to approve the stipulation both in its orders denying the motions for judgment and, later, in its articulation. In particular, the court relied, in part, on the lack of notarization of the defendant’s signature on the stipulation document. Despite the plaintiffs arguments, we conclude that this was a proper exercise of the court’s discretion. A properly notarized signature would be proof that the defendant’s signature was valid, and that his agreement to the stipulation was his “ ‘free act and deed’.” See Stone-Krete Construction, Inc. v. Eder, 280 Conn. 672, 680, 911 A.2d 300 (2006).

In its appellate brief, the plaintiff states that the defendant had agreed to pay $200 per month on the debt. It also states that the “[defendant expressly agreed to pay postjudgment interest at the statutory rate on the unpaid balance,” citing to its motion that, as explained by the trial court, fails to set forth any specific statutory reference or any specific percentage of interest. The plaintiff then explains: “[The] [defendant's wife contacted [the] plaintiffs counsel’s office on behalf of her husband ... to ask about the proposed stipulation to judgment. She first asked about the interest rate, and was informed that it was 10 [percent] annual interest. [The defendant’s wife] offered to pay $300 per month .... [The] [defendant then agreed to start paying immediately but at a rate of $200 per month.” The plaintiff also states that the “[defendant executed [the] [stipulation and returned it to the plaintiff’s counsel for submission to the [c]ourt.”

We conclude that it was not an abuse of discretion for the court to decline to accept the stipulation as presented. The plaintiff discussed the defendant’s debt with the defendant’s wife, obtained an offer of payment from her, with which the defendant, apparently, would not agree, and the stipulated agreement was not signed in the presence of counsel and was not notarized; it was “returned” to counsel’s office. In this case, the court was not willing to accept a signature that was not notarized or otherwise verifiable by the court, and counsel made no attempt to alleviate the court’s concerns by submitting a notarized signature or by requesting an evidentiary hearing. On this basis, we conclude that the court’s decision did not reflect an abuse of discretion.

The original appeal is dismissed for lack of a final judgment; the judgment in the amended appeal is affirmed.

In this opinion the other judges concurred.

       Before final judgment was rendered in this case, the plaintiff, Midland Funding, LLC, sought, in its original appeal to this court, to appeal from the trial court’s denial of the plaintiffs motion for judgment in accordance with a stipulation of the parties. This interlocutory ruling, however, is not a final judgment from which an appeal properly can be taken. See Sharon Motor Lodge, Inc. v. Tai, 82 Conn. App. 148, 152-53, 842 A.2d 1140 (interlocutory order refusing to enter judgment in accordance with stipulated agreement is not final judgment), cert. denied, 269 Conn. 908, 852 A.2d 738 (2004). Accordingly, although the parties have not addressed this issue, because the lack of a final judgment deprives this court of subject matter jurisdiction, we dismiss the plaintiffs original appeal. See id., 152; State v. Dalzell, 282 Conn. 709, 715, 924 A.2d 809 (2007); Sabrowski v. Sabrowski, 282 Conn. 556, 560, 923 A.2d 686 (2007). The amended appeal, taken after final judgment was rendered, and which also raises the issues that were presented in the original appeal, however, properly is before us. Effective January 1, 2010, Practice Book § 61-9 was amended and now provides in relevant part: “If, after an amended appeal is filed, the original appeal is dismissed for lack of jurisdiction, the amended appeal shall not be void as long as the amended appeal was filed from a judgment or order from which an original appeal could have been filed.”
      We also note errors, however, on the plaintiffs amended appeal form. The form improperly states that the plaintiff is appealing from the judgment dated November 8, 2010, and from the “denial of motions for judgment . . . on 11/8/10, 11/29/10 and 2/7/11.” The date of final judgment, however, was April 6,2011, which should be the date of judgment from which the plaintiff is appealing. Nevertheless, we previously have viewed such errors as technical defects that do not implicate our jurisdiction over the appeal. See, e.g., Brown v. Rosen, 36 Conn. App. 206, 210, 650 A.2d 568 (1994). Accordingly, despite such errors, we will consider the merits of the amended appeal. See id.

       The defendant failed to file a brief in this appeal. Accordingly, we will consider the merits of the plaintiffs claim on the basis of the plaintiffs brief and oral argument, as well as the trial court record. See Gail R. v. Bubbico, 114 Conn. App. 43, 45 n.1, 968 A.2d 464 (2009).

       The plaintiff raises no claims with regard to the final judgment rendered by the court.

       The appellate record and the court file in this case do not have copies of the March 24, 2011 motion for judgment. Because this document is available from the court’s e-file system, however, we have obtained a copy therefrom.

       The plaintiff asserts that “[i]f the trial court had a genuine concern over the validity of the [s]tipulation and the defendant’s knowledge and willingness to enter into the stipulation, it would have been a simple matter for [the] [c]ourt to schedule a hearing so that the defendant could appear in [c]ourt and confirm his agreement to the terms of the [s]tipulation. The trial court, however, simply refused to enter judgment in accordance with the parties’ agreement. Moreover, the role of the trial court is not to act as an advocate or adversary; the role of the court is to ensure that the process is followed.” We take issue with this assertion. The role of the trial judge is not only to “ensure that the process is followed,” but it also is to determine that any damages that are awarded are fair and just in light of the specific facts of each case. See Commission on Human Rights & Opportunities ex rel. Arnold, v. Forvil, 302 Conn. 263, 283, 25 A.3d 632 (2011). This is an aspect of the trial judge’s responsibility to be a minister of justice. See Gorelick v. Montanaro, 94 Conn. App. 14, 22 n.14, 891 A.2d 41 (2006). In this case, the court clearly expressed its concerns to the plaintiff, but the plaintiff, as the proponent of the stipulated agreement, did not request a hearing and otherwise did not offer any evidence responsive to the concerns of the court. Despite those concerns, the court did not render a judgment against the plaintiff; instead, it merely denied the plaintiffs motions for judgment in accordance with the stipulation. The plaintiff cannot “compel [the] court to render a judgment in accordance with a stipulation that the court, in the exercise of its discretion, is unwilling to accept. System Federation No. 91, Railway Employees’ Department, AFL-CIO v. Wright, [supra, 364 U.S. 651].” Bank of Boston Connecticut v. DeGroff supra, 31 Conn. App. 257 (Freedman, J., concurring in part and dissenting in part). The plaintiff had time to seek a hearing or to take further action to explain to the court the fairness of the terms of the stipulation, as judgment was not rendered in this case until April 6, 2011, on the March 24, 2011 motion filed by the plaintiff.

       Because our conclusion on this issue is dispositive, we do not address the plaintiffs additional claims.


source: Caselaw Access Project

author: BEACH, J.

license: Public Domain

text:
    COPPOLA CONSTRUCTION COMPANY, INC. v. HOFFMAN ENTERPRISES LIMITED PARTNERSHIP ET AL.
    (AC 33102)
    Beach, Espinosa and Flynn, Js.
    Argued November 30, 2011 —
    officially released March 13, 2012

      Fletcher C. Thomson, with whom was Lawrence G. Rosenthal, for the appellant (plaintiff).

      Richard P. Weinstein, with whom, on the brief, was Nathan A. Schatz, for the appellee (defendant Jeffrey S. Hoffman).
   Opinion

BEACH, J.

The plaintiff, Coppola Construction Company, Inc., appeals from the judgment rendered by the trial court granting the motion for judgment filed by the defendant Jeffrey S. Hoffman and denying the plaintiffs motion for leave to amend its complaint. On appeal, the plaintiff claims that the court erred by granting the motion for judgment on count six of the third amended complaint following the court’s granting of Hoffman’s motion to strike that count. We reverse, in part, the judgment of the trial court.

The following facts and procedural history are relevant to the plaintiffs appeal. This case was commenced on or about December 9, 2009, with an application for prejudgment remedy by the plaintiff against Hoffman and Hoffman Enterprises limited Partnership (Hoffman Enterprises). The plaintiff sought to recover money damages in connection with site work that the plaintiff had agreed by contract to perform for Hoffman Enterprises on several parcels of property owned by Hoffman Enterprises known as Hoffman Auto Park located in Simsbury. The operative complaint alleged six separate claims: counts one through five against Hoffman Enterprises for breach of contract, quantum meruit, unjust enrichment, tortious interference and unfair trade practices, respectively, and count six against Hoffman for negligent misrepresentation. The defendants filed a motion to strike counts four, five and six, which the court denied with respect to counts four and five and granted with respect to count six.

In count six, the plaintiff alleged, in part, that “Hoffman entered into agreements with Signature Construction Services, [LLC] (Signature) to perform construction on his new residence in Rhode Island. The agreements with Signature were based, in part, upon Signature being the construction manager and agent for Jeffrey Hoffman’s business interests in the Hoffman Auto Park expansion. . . . Upon information and belief, Jeffrey S. Hoffman received special pricing and below market rates for the construction of his residence in Rhode Island in exchange for inflating Signature’s compensation through the Hoffman Auto Park facility [and other] valuable consideration. . . . Jeffrey S. Hoffman entered into the scheme to obtain lower bid estimates all in an attempt to have People’s Bank fund the [Hoffman Auto Park construction] project initially and then to provide change orders after the fact to force the Bank into further financing. . . . Coppola was not aware of the scheme being perpetrated . . . and was promised by Jeffrey Hoffman that he would pay for all change orders and ‘extras’ that he ordered. Mr. Hoffman is now alleging that Signature was not his ‘agent’ for purposes of the construction of the Hoffman Auto Park and is, upon information and belief, stating that Signature did not have the authority to act on his or [Hoffman Enterprises’] behalf. . . . Coppola relied upon Jeffrey Hoffman’s representations and those made by his agent, Signature, to its detriment when the costs of the change orders and extra work exceeded the Bank financing. Coppola relied upon the statements and actions of Jeffrey Hoffman that Signature was [Hoffman Enterprises’] agent for purposes of the construction, whether directly for [Hoffman Enterprises] or for Mr. Hoffman in his personal capacity. • • • The result of the scheme between Hoffman and Signature directly resulted in Coppola suffering damages in that Hoffman could not obtain the funding from People’s Bank to pay Coppola and thus forestall[ed] payments which have resulted in the severe economic harm to Coppola. ... In addition, to the extent that Hoffman now claims that [Hoffman Enterprises] did not provide the authority to Signature to act for [Hoffman Enteiprises], such statements were made by Hoffman with knowledge that such statements were false. Hoffman’s actions and statements were made to Coppola to induce it to perform the work at the Project and Coppola relied upon the statements and actions of Hoffman to its detriment.”

The court reviewed the parties’ arguments. Hoffman argued that count six was really “a claim of breach of contract based upon the promises and representation of [Hoffman]” and that “when a party misrepresents another person to be his agent, that does not state a claim for misrepresentation but merely affords a factual basis for inferring that the putative agent had apparent authority to bind the principal who made the representation.” The court noted that the plaintiff asserted that its claim that “Hoffman’s misrepresentation as to Signature’s authority to act for him and [Hoffman Enterprises], in relation to the Hoffman Auto Park construction project, was in fact a misrepresentation of fact, then known to be false, which it reasonably relied on to its detriment.” The court found: “At no point, however, does [the plaintiff] specify how it ever relied upon that misrepresentation to its detriment except by agreeing to perform extra work on the proj ect with Signature’[s] approval — -in their words, as the defendants have asserted, by entering into and performing work under contracts which the defendants are bound to honor based upon Signature’s approval . . . .” The court concluded that the count did not state a valid claim for negligent misrepresentation and granted Hoffman’s motion to strike that count. Pursuant to Practice Book § 10-44, Hoffman moved for judgment. The court granted Hoffman’s motion for judgment and denied the plaintiffs motion to amend its complaint. This appeal followed.

“We begin by setting out the well established standard of review in an appeal from the granting of a motion to strike. Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court’s ruling ... is plenary. . . . We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. . . . Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged. ... It is fundamental that in determining the sufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted. . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.” (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010).

“Our Supreme Court has long recognized liability for negligent misrepresentation. . . . The governing principles [of negligent misrepresentation] are set forth in similar terms in § 552 of the Restatement (Second) of Torts (1977): One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.” (Internal quotation marks omitted.) Rafalko v. University of New Haven, 129 Conn. App. 44, 52, 19 A.3d 215 (2011). “Traditionally, an action for negligent misrepresentation requires the plaintiff to establish (1) that the defendant made a misrepresentation of fact (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result.” (Internal quotation marks omitted.) Centimark Corp. v. Village Manor Associates Ltd. Partnership, 113 Conn. App. 509, 518, 967 A.2d 550, cert. denied, 292 Conn. 907, 973 A.2d 103 (2009).

The plaintiff asserts that count six of its complaint states a legally cognizable claim for negligent misrepresentation as to Signature’s authority to act on behalf of Hoffman Enterprises. It appears that the thrust of the plaintiffs allegations is that Hoffman misrepresented that Signature was the agent of Hoffman Enterprises, such that Hoffman Enterprises was obligated to pay for the change orders and extras. An examination of the count reveals that it sufficiently alleges a cause of action for negligent misrepresentation.

The plaintiff alleged in paragraph nine that Hoffman stated that “Signature was [Hoffman Enterprises’] and Ms agent for purposes of the construction” and in paragraph eight that “Hoffman is now alleging that Signature was not Ms ‘agent’ for purposes of the construction of the Hoffman Auto Park and is, upon information and belief, stating that Signature did not have the authority to act on Ms or [Hoffman Enterprises’] behalf.” It further asserted in paragraph eleven that “such statements were made by Hoffman with knowledge that such statements were false.” These allegations directly and implicitly help to establish the elements that Hoffman made a misrepresentation of fact, i.e., that Signature had authority to act on behalf of Hoffman Enterprises and thus to obligate Hoffman Enterprises to pay for the work, that he knew or should have known was false.

The plaintiff also alleged in paragraph nine that it “relied upon Jeffrey Hoffman’s representations and those made by Ms agent, Signature, to its detriment when the costs of the change orders and extra work exceeded the Bank financing.” It alleged in paragraph two that Hoffman was “an officer of [Hoffman Enterprises] and a principal in the ownersMp of the various entities that comprise the Hoffman Enterprises the Phyllis Hoffman Land Trust, the owner of the Property wherein the Project is located” and in paragraph eight that it “was not aware of the scheme being perpetrated by Jeffrey S. Hoffman and Signature . . . .” These allegations provide support for the reasonableness of the plaintiffs reliance on the alleged misrepresentation. The plaintiff further alleged in paragraph ten that “[t]he result of the scheme between Hoffman and Signature directly resulted in Coppola suffering damages in that Hoffman could not obtain the funding from People’s Bank to pay Coppola and thus forestalled] payments wMch have resulted in the severe economic harm to Coppola.” TMs allegation, in conjunction with the allegation in paragraph nine that the plaintiff “relied upon Jeffrey Hoffman’s misrepresentations ... to its detriment when the costs of the change orders and extra work exceeded the Bank financing,” provides support for the plaintiffs claim that it reasonably relied on Hoffman’s misrepresentation to its detriment because Hoffman Enterprises had not paid for the change orders and extras. Construing the complaint in the manner most favorable to sustaining its legal sufficiency, as we are required to do, a comparison between the elements of negligent misrepresentation and the allegations in count six reveals that the plaintiff has provided allegations that would support, if proven to be true, a cause of action for negligent misrepresentation. Accordingly, we conclude that the court erred by granting Hoffman’s motion to strike count six.

The judgment is reversed only as to count six of the third amended complaint alleging negligent misrepresentation and the case is remanded with direction to deny the motion to strike as to count six and for farther proceedings according to law. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The defendants in this action include Jeffrey S. Hoffman and Hoffman Enterprises Limited Partnership. Only Jeffrey S. Hoffman is a party to this appeal.

       Hoffman and Hoffman Enterprises Limited Partnership, the other defendant in this action, which is not a party to this appeal, moved to strike three counts of the six count complaint. We are concerned with the motion to strike only insofar as it sought to strike count six.

       In its principal brief, the plaintiff argued that count six asserted a legally sufficient negligent misrepresentation claim on two grounds: negligent misrepresentation (1) regarding payment for services and (2) as to Signature’s authority to act on behalf of Hoffman Enterprises. It appears that the plaintiffs first ground is based on the alleged statement by Hoffman that “he would pay for all change orders and ‘extras’ that he ordered,” whereas the second ground involves “Hoffman’s representations and those made by his agent, Signature . . . that Signature was [Hoffman Enterprises’] . . . agent,” and thus Hoffman Enterprises would be obligated to pay for the work in the event that the bank did not provide financing. (Emphasis added.) In its reply brief, the plaintiff conceded that it could not prevail on the first ground. Accordingly, we do not address that argument.

       Hoffman argues in his brief that “where the alleged ‘misrepresentation’ is based on a statement by a principal, or one who speaks for a principal, that another person is an agent of the principal, that allegation necessarily fails to state an actionable claim for misrepresentation. Rather, it merely provides a basis to bind the purported contracting party on a theory of apparent authority.” This argument ignores the plaintiffs right to plead alternative causes of action based on the same facts. Practice Book § 10-25 (“[t]he plaintiff may claim alternative relief, based upon an alternative construction of the cause of action”); Dreier v. Upjohn Co., 196 Conn. 242, 245, 492 A.2d 164 (1985) (“[u]nder our pleading practice, a plaintiff is permitted to advance alternative and even inconsistent theories of liability against one or more defendants in a single complaint”). Accordingly, regardless of whether the allegations in count six provide a factual basis for apparent authority, the plaintiff has alleged negligent representation. It does not follow, of course, that a plaintiff may recover twice for the same wrong; see Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 22 n.6, 699 A.2d 964 (1997); but a plaintiff is permitted to raise alternative theories of liability and may seek damages from multiple defendants. As discussed, we must construe the complaint in the manner most favorable to sustaining its legal sufficiency, and our comparison of the elements of negligent misrepresentation and the allegations in count six causes us to conclude that the count should not have been stricken.
      For several reasons, we likewise find unpersuasive Hoffman’s argument that “to allow a claim of negligent misrepresentation where the purported representation pertains to whether a putative agent had authority to bind the principal would turn every claim of apparent authority into a tort action for misrepresentation. ” Our Supreme Court has stated: “ [A]pparent authority is to be determined, not by the agent’s own acts, but by the acts of the agent’s principal. . . . The issue of apparent authority is one of fact to be determined based on two criteria. . . . First, it must appear from the principal’s conduct that the principal held the agent out as possessing sufficient authority to embrace the act in question, or knowingly permitted [the agent] to act as having such authority. . . . Second, the party dealing with the agent must have, acting in good faith, reasonably believed, under all the circumstances, that the agent had the necessary authority to bind the principal to the agent’s action.” (Internal quotation marks omitted.) Gordon v. Tobias, 262 Conn. 844, 850-51, 817 A.2d 683 (2003); see also 1 Restatement (Third), Agency § 2.03, p. 113 (2006). In contrast, as stated previously, “an action for negligent misrepresentation requires the plaintiff to establish (1) that the defendant made a misrepresentation of fact (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as aresult.” (Internal quotation marks omitted.) Centimark Corp. v. Village Manor Associates Ltd. Partnership, supra, 113 Conn. App. 518. Thus, in order for a claim premised on apparent authority also to state a cause of action for negligent misrepresentation, there must be, inter alia, a misrepresentation of a fact, and a plaintiff must establish that the defendant knew or should have known of the misrepresentation’s falsity, neither of which is required for a contract claim premised on apparent authority. Additionally, liability based on apparent authority depends on the acts of the principal, whereas a plaintiff alleging negligent misrepresentation need not necessarily specify conduct on the part of a principal. Moreover, because negligent misrepresentation is a cause of action sounding in negligence, reasonable care is also an element. 3 Restatement (Second), Torts, Negligent Misrepresentation § 552 (1), pp. 126-27 (1977) (“[o]ne ... is subject to liability ... if he fails to exercise reasonable care or competence in obtaining or communicating the information”); compare 1 Restatement (Third), Agency, supra, § 2.03, comment (c), p. 117 (“To establish apparent authority, it is not necessary for a third party to establish fault on the part of the principal .... If apparent authority is present, it is irrelevant that its presence or continued presence eluded the principal’s exercise of due care to prevent or defeat it.”). Finally, tort remedies may be different from contract remedies, and damages may be sought from different parties.


text:
    STEPHEN J. PACE v. MARIA JEAN PACE
    (AC 32045)
    (AC 32288)
    Beach, Bishop and Mihalakos, Js.
    Argued September 6, 2011 —
    officially released March 13, 2012

      Marianne J. Charles, for the appellant (plaintiff).

      Christopher P. Norris, with whom, on the brief, was William R. Donaldson, for the appellee (defendant).
   Opinion

BEACH, J.

The plaintiff, Stephen J. Pace, appeals from the judgments of the trial court denying his two postjudgment motions for modification of alimony and child support, and granting two postjudgment motions for contempt filed by the defendant, Maria Jean Pace, arising from the plaintiff’s failure to pay alimony and child support as ordered by the court. The plaintiff raises various claims on appeal regarding the court’s postjudgment orders. We affirm the judgments of the trial court.

The plaintiff and the defendant were married in 1989. They are the parents of two children, one bom in 1991 and the other bom in 1994. In 2008, the plaintiff sought a judgment of dissolution. On April 1, 2009, the court dissolved the parties’ marriage and incorporated the parties’ separation agreement into its judgment. The judgment provided, inter alia, that the plaintiff pay the defendant $300 per week in alimony and $450 per week for child support until the emancipation of the oldest child, at which time child support would be reduced to $350 per week.

In December, 2009, the plaintiff filed a motion for modification and the defendant filed a motion for contempt. Following a hearing, the court, Ozalis, J., on February 2, 2010, issued an order denying the plaintiffs motion and granting the defendant’s motion. The plaintiff appealed (AC 32045).

Thereafter, the plaintiff filed a second motion for modification and the defendant filed a motion for contempt. In its May 18, 2010 memorandum of decision, the court, Hon. Sidney Axelrod, judge trial referee, denied the plaintiffs motion and granted the defendant’s motion. The plaintiff appealed (AC 32288).

The plaintiffs claims regarding the February 2, 2010 and May 18, 2010 decisions will be addressed in turn. Additional facts will be set forth as necessary.

I

We first address the plaintiffs claims challenging the February 2, 2010 order. The following additional facts are relevant to these claims. In his December, 2009 motion for modification, the plaintiff sought to decrease his alimony and child support obligations because of an alleged lack of income. The defendant filed a motion for contempt arising from, inter alia, the plaintiffs failure to pay alimony and child support as ordered in the judgment of dissolution. On February 2, 2010, the court denied the plaintiffs motion and granted the defendant’s motion. In denying the plaintiffs motion for modification, the court stated that it did not find credible the plaintiffs contention that he had no income. The court accordingly found that the plaintiff had not proven a change in his financial circumstances.

With respect to the defendant’s motion, the court found the plaintiff in contempt and found an arrearage of alimony and child support in the amount $13,000. The court ordered that $4000 of the arrearage be paid by February 22,2010. A hearing was scheduled for March 1, 2010, to determine whether incarceration was appropriate. The court awarded $6265 in attorney’s fees and other expenses. The court also determined that the plaintiff had been able to comply with its April 1, 2009 order and that his conduct was wilful.

A

The plaintiff first claims that the court abused its discretion when it found him in contempt for failure to pay alimony and child support. We disagree.

“[O]ur analysis of a judgment of contempt consists of two levels of inquiry. First, we must resolve the threshold question of whether the underlying order constituted a court order that was sufficiently clear and unambiguous so as to support a judgment of contempt. . . . This is a legal inquiry subject to de novo review. . . . Second, if we conclude that the underlying court order was sufficiently clear and unambiguous, we must then determine whether the trial court abused its discretion in issuing, or refusing to issue, a judgment of contempt, which includes a review of the trial court’s determination of whether the violation was wilful or excused by a good faith dispute or misunderstanding.” (Citations omitted.) In re Leah S., 284 Conn. 685, 693-94, 935 A.2d 1021 (2007).

The plaintiff, focusing on the second prong of the inquiry, contends that the court should not have found him in contempt, because he was unable to pay alimony and child support due to a lack of funds and had no expectation of future earnings.

“It is undisputed that a judgment of civil contempt is improper if the contemnor, through no fault of his own, was unable to obey the court’s order. ... It is, however, equally undisputed that, if a finding of wilful misconduct is based on a court’s determination of the credibility of relevant testimony at trial, we will overturn it only if the record demonstrates a manifest abuse of discretion. [T]he trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony and, therefore, is free to accept or reject, in whole or in part, the testimony offered by either party.” (Citations omitted; internal quotation marks omitted.) LaBossiere v. Jones, 117 Conn. App. 211, 224, 979 A.2d 622 (2009).

Relying on a bank statement from Webster Bank, which indicated a beginning balance of $11,266.19 in October, 2009, and a bank statement from Bank of America for October, 2009, which indicated a beginning balance of $17,360.26, the court found that the plaintiff had had sufficient funds to pay alimony and child support. The court also stated that it did not find credible the plaintiffs statement that he had no income. At the February 2, 2010 hearing, the court found that the restated pro forma income statement of the plaintiff, who owned his own business, showed gross sales of $173,138, which represented an increase of $80,000 in gross sales. In light of the court’s findings regarding the plaintiffs ability to pay alimony and child support, we are not persuaded by the plaintiffs argument that the court abused its discretion in finding that his conduct was wilful and thereby finding him in contempt.

B

The plaintiff next claims that the court in its February 2, 2010 decision abused its discretion when it denied his motion for modification. We disagree.

“General Statutes § 46b-86 governs the modification ... of an alimony or support order after the date of a dissolution judgment. . . . A final order for child support may be modified by the trial court upon a showing of a substantial change in the circumstances of either party. . . . The party seeking modification bears the burden of showing the existence of a substantial change in the circumstances. ... An appellate court will not disturb atrial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action.” (Citation omitted; internal quotation marks omitted.) Rosier v. Rosier, 103 Conn. App. 338, 341, 928 A.2d 1228, cert. denied, 284 Conn. 932, 934 A.2d 247 (2007).

The plaintiffs motion for modification was based on his claim that he was receiving no income. The court, however, did not find this assertion credible and accordingly concluded that the plaintiff had not sustained his burden of proving a substantial change in his financial circumstances. After a careful review of the record we cannot conclude that the court abused its discretion in denying the plaintiffs motion for modification.

C

The plaintiff next claims that the court erred when it awarded the defendant attorney’s fees. We disagree.

“Our law for awarding attorney’s fees in contempt proceedings is clear. General Statutes § 46b-87 provides that the court may award attorney’s fees to the prevailing party in a contempt proceeding. The award of attorney’s fees in contempt proceedings is within the discretion of the court. ... In making its determination, the court is allowed to rely on its familiarity with the complexity of the legal issues involved. Indeed, it is expected that the court will bring its experience and legal expertise to the determination of the reasonableness of attorney’s fees. . . . Moreover, because the award of attorney’s fees pursuant to § 46b-87 is punitive, rather than compensatory, the court properly may consider the defendant’s behavior as an additional factor in determining both the necessity of awarding attorney’s fees and the proper amount of any award.” (Citation omitted; internal quotation marks omitted.) Gil v. Gil, 110 Conn. App. 798, 806-807, 956 A.2d 593 (2008).

The plaintiff sets forth numerous arguments to support his claim that the award of attorney’s fees was in error. On the basis of the record before us and in light of the court’s broad discretion in awarding attorney’s fees in connection with contempt proceedings, we cannot conclude that the court abused its discretion.

II

We next address the plaintiffs claims pertaining to the court’s May 18, 2010 decision. The following additional facts are relevant to these claims. In March, 2010, the plaintiff filed a motion for modification in which he sought a downward modification of the support orders because of a substantial change in his financial circumstances. In April, 2010, the defendant filed a motion for contempt in which she alleged that the plaintiff had failed to make alimony and child support payments since the February 2, 2010 order, and requested, inter alia, a finding that the plaintiff was in contempt, and an order that, the plaintiff pay all alimony and child support currently owed as well as attorney’s fees.

In its May 18, 2010 memorandum of decision, the court denied the plaintiffs motion for modification. The court noted that both parties requested that it determine whether there had been a substantial change in circumstances between the time of the hearing and the February 2, 2010 memorandum of decision, rather than from the time of the hearing and the judgment of dissolution. As a result, the court employed February 2, 2010, as the reference point for comparison. The court reasoned that it was the plaintiffs burden to prove a substantial change in circumstances since February 2, 2010, and that to meet that burden he must establish what his circumstances were on February 2, 2010. The court found that at the time of the hearings related to the May 18, 2010 decision, the plaintiff had a gross weekly income of $730.78 less deductions, but that he had failed to prove what his income was as of the February 2, 2010 hearing. The court further stated that the plaintiff claimed that he had been unemployed on February 2, 2010. It was clear, however, from its memorandum of decision of February 2, 2010, that the court did not find his testimony regarding his income credible.

The court granted the defendant’s motion for contempt. The court awarded counsel fees to the defendant in the amount of $1500, based on the amount of time the defendant’s counsel appeared before the court on the contempt motion. After deducting $610 that the plaintiff had paid toward his alimony and child support obligations, the court concluded that the plaintiff owed $10,640 in alimony and child support for the fifteen weeks between February 2 and May 17, 2010, at the rate of $750 per week in alimony and child support. The court ordered that the child support arrearage was to be paid at a rate of $90 per week and the existing alimony arrearage at $50 per week, in addition to the combined $750 per week alimony and child support. Pursuant to Practice Book § 25-26, the court determined that the added arrearage had accrued without sufficient excuse and ordered that the current alimony and/or child support could not be modified at least until the plaintiff reduced his combined alimony and support obligations to no more than $9000.

A

The plaintiff claims that the court erred in denying his March, 2010 motion for modification of support. We disagree.

We previously have stated: “A final order for child support may be modified by the trial court upon a showing of a substantial change in the circumstances of either party. . . . An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented.” (Citation omitted; internal quotation marks omitted.) Rosier v. Rosier, supra, 103 Conn. App. 341.

The plaintiff argues that the court erred in finding that his financial circumstances had not changed since the February 2, 2010 order. The plaintiff cannot prevail on any argument that the court erred in basing the inquiry on the February 2, 2010 order, rather than the date of dissolution. Counsel for both parties agreed and asked the court to use the February 2, 2010 date. At the conclusion of the hearing on the March, 2010 motion for modification, the plaintiffs counsel stated: “Your honor, with respect to the motion for modification, the court must find that there’s a substantial change in circumstances, and I’m going to look at just the period of time . . . from February 2, 2010, because ... I believe that would be the proper analysis. . . The defendant’s counsel maintained the same position.

In denying his March, 2010 motion for modification, the court found that the plaintiff did not prove a substantial change in circumstances since February 2, 2010, because he failed to establish what his financial circumstances were on that date. It is the plaintiffs burden to prove a substantial change in circumstances, and we do not disagree with the conclusion of the court that the plaintiff failed to prove at the hearing on the March, 2010 motion for modification what his income was on February 2, 2010, and that there had been a substantial change in circumstances. If there was error in using the February 2, 2010 date, it was induced error. See Hodgate v. Ferraro, 123 Conn. App. 443, 451, 3 A.3d 92 (2010) (party cannot complain on appeal of error it encouraged court to make). On the basis of the record, we cannot conclude that the court abused its discretion in denying the plaintiffs March, 2010 motion for modification.

B

The plaintiff next argues that the court abused its discretion when it, in addition to denying his March, 2010 motion for modification, made an order regarding the payment of the arrearage. The plaintiff seems to argue that the court did not have the authority to modify sua sponte the award of alimony and child support. He also contends that it otherwise was inequitable to do so because he could not afford to make his current support payments. We disagree.

The court had the authority to order the plaintiff to pay the arrearage. Practice Book § 25-26 permits the court, when a party who is in arrears files a motion for modification, to consider whether the arrearage has accrued without sufficient excuse so as to constitute contempt and to determine whether any modification of alimony and child support shall be ordered prior to the payment of any arrearage found to exist. The court apparently did not find credible the plaintiffs claim that he was unable to pay alimony and child support, and found his claim in his motion for modification that he depleted his retirement accounts in order to pay his support obligations to be factually inaccurate. We cannot conclude that it was an abuse of discretion for the court to order the plaintiff to pay the arrearage not only in light of Practice Book § 25-26, but also because the defendant’s motion for contempt was considered simultaneously with the plaintiffs motion for modification.

c

The plaintiff also claims that the court erred when it made the following order: “ [T]here cannot be a further modification of current alimony and/or support until the plaintiff has reduced his alimony and support obligation to no more than $9000.” The plaintiff argues that he has a right to file a motion for modification in the future regardless of the amount he may owe in arrearage and that he cannot be deprived of his “day in court.” In support of his argument, the plaintiff relies solely on General Statutes § 46b-86 (a), which does not by itself support his argument. The order contains no express prohibition against filing a motion for modification in the future. We cannot review the plaintiffs vague argument concerning access to the courts because he has not provided us with any relevant legal authority or analysis. On the analysis presented, we decline to address this claim. See, e.g., Russell v. Russell, 91 Conn. App. 619, 634-35, 882 A.2d 98 (this court not required to review claims that are inadequately briefed), cert. denied, 276 Conn. 924, 295, 888 A.2d 92 (2005).

The judgments are affirmed.

In this opinion the other judges concurred.

       The plaintiff makes claims in addition to those set forth in this opinion. We have carefully reviewed those claims and find them to be without merit.

       Alimony was to be paid from April, 2009, through March, 2019, and was nonmodifiable as to term.

       The plaintiff makes no claim regarding the clarity of the order.

       The plaintiff also argues that he was self-represented during the contempt proceedings and that the court should have provided him with counsel. We agree that, generally, in civil contempt proceedings in which the party against whom the contempt motion is brought faces potential incarceration, the court must advise that party of his or her right to counsel, and in the event that he or she is indigent, to court-appointed counsel. See Kennedy v. Kennedy, 83 Conn. App. 106, 111, 847 A.2d 1104, cert. denied, 270 Conn. 915, 853 A.2d 530 (2004); Practice Book § 25-63 (a). In the present case, however, the record reflects that there was not a realistic potential of incarceration and that the plaintiff, in fact, was not incarcerated as a result of the hearing.

       We note that the court had ordered in the February 2, 2010 order that the arrearage be reduced to $9000, by the payment of $4000 by no later than February 22, 2010.

       The plaintiff also argues that the court erred in treating the motion as pertaining only to child support. The court provided two reasons for denying any request made by the plaintiff to modify alimony: (1) it was not claimed in the motion for modification, and (2) even if it had been claimed, the plaintiff failed to establish what his financial circumstances were on February 2, 2010, and thus did not prove a substantial change in circumstances from that time. Even if we assumed, without deciding, that the motion properly raised the issue of alimony, the court’s alternative reasoning is unchallenged and, at any rate, did not constitute an abuse of discretion.

       Practice Book § 25-26 provides in relevantpart: “(a) Upon an application for a modification of an award of . . . alimony or support of minor children, filed by a person who is then in arrears under the terms of such award, the judicial authority shall, upon hearing, ascertain whether such arrearage has accrued without sufficient excuse so as to constitute a contempt of court, and, in its discretion, may determine whether any modification of current alimony and support shall be ordered prior to the payment, in whole or in part as the judicial authority may order, of any arrearage found to exist.”

       General Statutes § 46b-86 (a) provides in relevant part: “Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support . . . may, at any time thereafter, be continued, set aside, altered or modified by the court upon a showing of a substantial change in the circumstances of either party . .. .”

       We express no opinion on the potential application of the order or whether a trial court would have the authority in the future to grant a motion for modification in light of the order. See Karovic v. Karovic, Superior Court, judicial district of Danbury, Docket No. FA-90-301584 (June 21, 1999).


author: ESPINOSA, J.

text:
    STATE OF CONNECITCUT v. RICHARD FONTAINE
    (AC 32607)
    Alvord, Espinosa and Pellegrino, Js.
    Argued November 9, 2011 —
    officially released March 13, 2012

      Joseph Visone, special public defender, for the appellant (defendant).

      Timothy F. Costello, assistant state’s attorney, with whom, on the brief, were Michael L. Regan, state’s attorney, and Thomas M. DeLillo, assistant state’s attorney, for the appellee (state).
   Opinion

ESPINOSA, J.

The defendant, Richard Fontaine, appeals from the judgment of the trial court, rendered following a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes (Rev. to 2005) § 14-227a and operating a motor vehicle with a suspended license in violation of General Statutes (Rev. to 2005) § 14-215 (c). The defendant claims that (1) the evidence was insufficient to sustain his conviction for operating a motor vehicle while under the influence of intoxicating liquor, (2) the court improperly denied his motion in limine to exclude testimony that the result of a horizontal gaze nystagmus test was an indication of his intoxication and (3) the court delivered a deficient instruction to the jury concerning the crime of operating a motor vehicle while under the influence of intoxicating liquor. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Shortly after 9 p.m. on the evening of August 20, 2006, state police Troopers Mark Roberts and David Abely observed the defendant operating a moped along Route 12, apublic roadway, in Lisbon. In apolice cruiser operated by Roberts, the troopers followed the defendant for approximately one mile. Initially, they observed that the moped had a defective tail fight. After the defendant stopped his vehicle, the troopers talked to him and administered field sobriety tests. After these encounters, the troopers determined that the defendant had operated the moped while under the influence of intoxicating liquor. At the time, the defendant’s license was under suspension as a consequence of a prior conviction of driving while intoxicated. Additional facts will be set forth as necessary.

I

First, the defendant claims that the evidence was insufficient to sustain his conviction of operating a motor vehicle while under the influence of intoxicating liquor. We disagree.

In reviewing whether the evidence supported a conviction, “[w]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... 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.” (Citation omitted; internal quotation marks omitted.) State v. Arthurs, 121 Conn. App. 520, 524, 997 A.2d 568 (2010).

To obtain a conviction under § 14-227a in the manner alleged by the state, the state bore the burden of proving beyond a reasonable doubt that the defendant operated a motor vehicle, on a public highway and while the defendant was “under the influence of intoxicating liquor . . . .” General Statutes (Rev. to 2005) § 14-227a (a) (1). There is no dispute that the state presented evidence sufficient to satisfy the first two essential elements of the crime. To satisfy the third element, the state must demonstrate that, as a result of the consumption of intoxicating liquor or any drug, or both, the defendant “had become so affected in his mental, physical or nervous processes that he lacked to an appreciable degree the ability to function properly in relation to the operation of his vehicle.” (Internal quotation marks omitted). State v. Morelli, 293 Conn. 147, 154, 976 A.2d 678 (2009).

The defendant claims that although the state presented evidence concerning the manner in which he performed field sobriety tests administered by the troopers, the state failed to establish adequately what was required to pass such tests and how such tests measured one’s ability to operate a motor vehicle. The state, however, did not bear the burden of educating the jury with regard to field sobriety tests, but of demonstrating that the defendant was intoxicated. On the basis of our review of the evidence in its entirety, we readily conclude that it supported a finding beyond a reasonable doubt that the defendant was intoxicated, as charged.

The state presented evidence from the troopers that they followed the defendant for approximately one mile as he operated his moped on Route 12, during which time he drove in an erratic manner, crossing over the white line on the right side of the roadway on three occasions. When the troopers encountered the defendant after he pulled into a parking lot, the defendant’s eyes appeared to be bloodshot and glassy, he smelled of liquor and his clothing was disheveled. Thereafter, he was uncooperative in his interactions with the troopers. Repeatedly, he asked for instruction with regard to the field sobriety tests administered by the troopers. He was unable to complete a walk and turn test, and he refused to complete a horizontal gaze nystagmus test and a one leg stand test. He refused to submit to a breathalyzer test. The defendant exhibited nystagmus during a partial administration of a horizontal gaze nys-tagmus test. Furthermore, at the outset of his interaction with the troopers, the defendant made statements to the troopers that clearly evidenced his consciousness of guilt, that he should not have been operating the moped. On the basis of this evidence and the rational inferences consistent with guilt drawn therefrom, we conclude that the evidence was sufficient to sustain the defendant’s conviction of operating a motor vehicle while under the influence of intoxicating liquor.

II

Next, the defendant claims that the court improperly denied his motion in limine to exclude testimony that the result of a horizontal gaze nystagmus test administered to him by Roberts was an indication of his intoxication. We disagree.

Prior to trial, the defendant filed a written motion to exclude “[horizontal gaze nystagmus] testing testimony.” The motion was related to a horizontal gaze nystagmus test administered by Roberts during the roadside investigation. The defendant argued that testimony related to the test was inadmissible because Roberts failed to administer the test properly. The state argued that the evidence would demonstrate that Roberts began to administer the test, but the defendant refused to complete it and that the state should be permitted to present Roberts’ observations to the jury. The court ruled that Roberts could testify with regard to what occurred during the partially completed test, and that the weight to be attributed to the evidence was a matter for the jury’s consideration.

On appeal, the defendant does not claim that the court improperly permitted the state to present any evidence concerning the horizontal gaze nystagmus test. Rather, he argues that, because the test was administered improperly, Roberts’ testimony “that the nystag-mus observed in the eyes of the defendant was the result of his intoxication” was inadmissible under the requirements set forth in State v. Balbi, 89 Conn. App. 567, 573-74, 874 A.2d 288, cert. denied, 275 Conn. 919, 883 A.2d 1246 (2005).

A close review of Roberts’ testimony reveals that it is at odds with the defendant’s claim. As relevant, Roberts testified that he began to test the defendant’s horizontal gaze and observed “a lack of smooth pursuit [with his eyes],” or nystagmus. Thereafter, the defendant became uncooperative and would not complete the test. The prosecutor asked Roberts, based on his training and experience, to identify one of the causes of nystagmus, to which Roberts replied, “Intoxication.” Subsequently, during redirect examination, Roberts testified that “the type of nystagmus” he observed was the same type of nystagmus that he had observed in other individuals who were intoxicated. Consistent with the evidence, the prosecutor did not argue that Roberts had fully administered a horizontal gaze nystagmus test, that the defendant had failed such test or that the test yielded a conclusion of intoxication. Instead, the prosecutor argued that the nystagmus observed by Roberts was one of several factors that supported a finding of intoxication.

On the basis of the foregoing, we conclude that the state did not elicit, nor did the court admit, the testimony described by the defendant. Accordingly, we conclude that the defendant’s claim is meiitless.

Ill

Finally, the defendant claims that the court delivered a deficient instruction to the jury concerning the crime of operating a motor vehicle while under the influence of intoxicating liquor. Specifically, the defendant claims that the court did not instruct the jury that one of the essential elements of the crime, as charged in this case, was that the operation of the motor vehicle occurred on a public highway. See General Statutes (Rev. to 2005) § 14-227a (a).

The defendant acknowledges that he did not preserve this claim of instructional error and seeks review of the claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The claim is reviewable under Golding because the record is adequate to review the court’s instructions, and a claim that the court omitted an instruction concerning an essential element of the crime is of constitutional dimension. Nonetheless, it is well settled that waived claims cannot satisfy Golding's third prong. See, e.g., State v. Darryl W., 303 Conn. 353, 367-68, 33 A.3d 239 (2012); State v. Hampton, 293 Conn. 435, 448-49, 978 A.2d 1089 (2009).

The record reflects that, on June 8, 2010, the court provided counsel with a copy of its draft jury charge, which contained the instruction at issue. The court afforded counsel a meaningful opportunity to review the draft charge overnight and, the next day, solicited comments thereon during an on the record charging conference. During that charging conference, the court, referring to the page numbers in its draft charge where the instruction appeared, specifically asked counsel if there were any objections to its “operating under the influence” instruction. Defense counsel replied in the negative. After the court delivered its charge to the jury, it asked counsel if there were any objections to the charge. Defense counsel replied, “No, Your Honor, thank you.”

In fight of this conduct by defense counsel, we readily conclude that the defendant implicitly waived any objection to the instruction as given. See State v. Kitchens, 299 Conn. 447, 482-83, 10 A.3d 942 (2011). Accordingly, the defendant cannot prevail under Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

       Additionally, as alleged in the second part of the information, the court found the defendant guilty of previously having been convicted of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes (Rev. to 2005) § 14-227a (g).

       “The horizontal gaze nystagmus test measures the extent to which a person’s eyes jerk as they follow an object moving from one side of the person’s field of vision to the other. The test is premised on the understanding that, whereas everyone’s eyes exhibit some jerking while turning to the side, when the subject is intoxicated the onset of the jerking occurs after fewer degrees of turning, and the jerking at more extreme angles becomes more distinct.” (Internal quotation marks omitted.) State v. Popeleski, 291 Conn. 769, 770 n.3, 970 A.2d 108 (2009).

       “Nystagmus is the inability of the eyes to maintain visual fixation on a stimulus when the eyes are turned to the side, often resulting in lateral jerking of the eyeball.” (Internal quotation marks omitted.) State v. Balbi, 89 Conn. App. 567, 570-71, 874 A.2d 288, cert. denied, 275 Conn. 919, 883 A.2d 1246 (2005).

       During his examination by the state, Abely testified that when Roberts asked the defendant for his operator’s license, the defendant replied, “[y]ou don’t need a license to operate a moped . . . give me a break, I just got out on a DWI offense ... I’ll keep the bike here, I’ll walk home, my brother lives in Jewett City and I’ll come back and get it.” Abely stated: “He just wanted us to basically forget about it, let him walk home or walk the bike home, and leave it at that.”

       For example, during closing argument, the prosecutor stated: “I’m not here to tell you that . . . the horizontal gaze nystagmus test was a valid test. And the evidence is that the defendant stared straight ahead after beginning to perform the test. And the officer told you it was invalid. I’m .not here claiming that he took the horizontal gaze test and failed it. What I am saying is that there is evidence of nystagmus as a result of the officer’s observations at the beginning of the test, and that evidence is a small piece of evidence that you put together with all of the other pieces and reasonably infer that the defendant was intoxicated.”

       At trial, the state presented uncontroverted evidence that Route 12 was a public highway.


text:
    STATE OF CONNECTICUT v. PETER KALPHAT
    (AC 32742)
    Robinson, Bear and Schaller, Js.
    Argued January 17 —
    officially released March 13, 2012

      Adele V. Patterson, senior assistant public defender, for the appellant (defendant).

      Sarah Hanna, assistant state’s attorney, with whom, on the brief, were Maureen Platt, state’s attorney, and Jason Germain, senior assistant state’s attorney, for the appellee (state).
   Opinion

BEAR, J.

The defendant, Peter Kalphat, appeals from the judgment of conviction, rendered after a jury trial, of possession of a controlled substance with intent to sell within 1500 feet of a public school in violation of General Statutes § 21a-278a (b). On appeal, the defendant claims that (1) the evidence adduced at trial was insufficient to support his conviction and (2) the trial court failed to instruct the jury that the intended location of the sale had to be within a school zone. We agree with the defendant’s first claim and, accordingly, reverse in part the judgment of the trial court.

The following facts, as reasonably could have been found by the jury, are relevant to this appeal. On the evening of August 6, 2008, an anonymous person telephoned 911 to report that people were smoking “weed” at 136 Central Avenue in Waterbury, which is located within 1600 feet of Driggs Elementary school. In response to the call, Officers Michael Modeen and Martin Scanlon were dispatched to the two-family home. The defendant lived in the first floor apartment. Modeen knocked on the front door of the house. He and Scanlon both detected the odor of raw marijuana. They also heard voices coming from the rear of the house. Scanlon notified their supervisor, Sergeant Charles Sheperd, of the situation, and Sheperd, thereafter, arrived at the scene. Scanlon and Sheperd walked down the driveway toward the rear of the house, while Modeen stayed near the front door. Scanlon smelled burning marijuana coming from the rear of the house. Errol Burke and Sandy Kalphat were sitting on the back porch. Burke was smoking marijuana. There also was a small, clear plastic bag containing a green, plant-like substance on the table, which Burke picked up and tried to hide on his person. Scanlon placed Burke under arrest. Sandy Kalphat attempted to interfere with Burke’s arrest, and Scanlon arrested her as well.

As Burke and Sandy Kalphat were being arrested, the defendant came through the back door but quickly retreated back inside the house. The defendant grabbed a large, clear plastic container, which held marijuana in brick form, weighing approximately ten pounds, and attempted to leave via the front door. Modeen, who was waiting near the front door, told the defendant to drop the container. The defendant ran into the common front hallway of the house, and Modeen followed him, tackling him to the floor. Scanlon, who from the rear of the house heard Modeen’s efforts to restrain and to arrest the defendant, went through the first floor apartment, into the common hallway, and assisted Modeen.

After members of the vice and intelligence division of the Waterbury police department executed a search warrant, their further investigation of the defendant’s apartment revealed a scale and plastic wrap that had traces of marijuana on it. In addition, a shoebox that contained a smaller scale, plastic ziplock bags and $3033 in cash was found on the kitchen table. A key to the house was located on the table near the shoebox.

In a substitute long form information, the state charged the defendant, in count one, with possession of a cannabis-type substance with intent to sell by a person who is not drug-dependent in violation of General Statutes §§ 21a-278 (b) and 53a-8 and, in count two, with possession of a controlled substance with intent to sell within 1500 feet of a public school in violation of § 21a-278a (b). Following a jury trial, the defendant was convicted on both counts and was sentenced on count one to a term of ten years incarceration, execution suspended after a mandatory five years, with three years probation, and, on count two, to a consecutive mandatory term of three years incarceration, for a total effective sentence of thirteen years incarceration, execution suspended after a mandatory eight years, with three years of probation. Following the imposition of sentence, the defendant filed the present appeal, contesting only his conviction of possession of a controlled substance with intent to sell within 1500 feet of a public school.

The defendant claims that the evidence was insufficient to prove that the location of the intended sale of the seized marijuana was within 1500 feet of a public school. He argues: “The fact that drugs are seized at a particular location is not, alone, sufficient to prove the intent to sell it at that location.” He contends that, although the state put forth sufficient evidence to convict him of possession of marijuana with intent to sell, there was no evidence that any sale or distribution of the marijuana was intended to occur in a public school zone. We agree.

“The standard of review [that] we [ordinarily] 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. ... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . . because this court has held that a jury’s factual inferences that support a guilty verdict need only be reasonable. . . .

“[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 trier, 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 jury’s verdict of guilty. . . . Furthermore, [i]n [our] process of review, 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 [that] establishes guilt in a case involving substantial circumstantial evidence. . . . Indeed, direct evidence of the accused’s state of mind is rarely available. . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. . . . [A]ny such inference cannot be based on possibilities, surmise or conjecture. ... It is axiomatic, therefore, that [a]ny [inference] drawn must be rational and founded [on] the evidence.” (Citation omitted; internal quotation marks omitted.) State v. Hedge, 297 Conn. 621, 656-58, 1 A.3d 1051 (2010).

The defendant challenges his conviction of one count of possession of a controlled substance with intent to sell within 1500 feet of a public school in violation of § 21a-278a(b). Section 2 la-278a(b) prohibits in relevant part any person from “possessing with the intent to sell or dispense . . . any controlled substance in or on, or within one thousand five hundred feet of, the real property comprising ... a public or private secondary or elementary school . . . .” Section 21a-278a (b) further provides in relevant part: “To constitute a violation of this subsection, an act of . . . possessing a controlled substance shall be with intent to sell or dispense in or on, or within one thousand five hundred feet of, the real property comprising a public or private secondary or elementary school . . . .” Pursuant to § 21a-278a (b), therefore, the state is required to prove “that the defendant intended to sell or dispense [the] drugs in his or her possession at a specific location, which location happens to be within 1500 feet of a public [elementary school], among other geographical designations.” (Internal quotation marks omitted.) State v. Hedge, supra, 297 Conn. 658.

“Intent is a question of fact, the determination of which should stand unless the conclusion drawn by the trier is an unreasonable one.” (Internal quotation marks omitted.) State v. Silva, 285 Conn. 447, 460, 939 A.2d 581 (2008), aff'd after remand, 113 Conn. App. 488, 966 A.2d 798 (2009). “The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged. . . . Because it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, a person’s state of mind is usually proven by circumstantial evidence. . . . Intent may be and usually is inferred from conduct. . . . [W]hether such an inference should be drawn is properly a question for the jury to decide.” (Internal quotation marks omitted.) State v. Francis, 90 Conn. App. 676, 681, 879 A.2d 457, cert. denied, 275 Conn. 925, 883 A.2d 1248 (2005).

The state argues that the jury reasonably inferred that the defendant intended to sell marijuana at the location where he and the marijuana were seized, 136 Central Avenue, which the evidence established was within 1500 feet of a public elementary school. The state contends that “given the presence of nearly ten [pounds] of marijuana, two scales, ziplock bags and $3033 cash at 1[3]6 Central Avenue, it was reasonable for the jury to infer that the defendant intended to package and sell the marijuana. Because the defendant does not dispute these facts, he also cannot dispute the reasonable inference that the defendant intended to package and distribute the marijuana from 1 [3] 6 Central Avenue . . . The defendant argues, however, that this final supposed inference is nothing more than improper speculation, there having been no evidence regarding a sale from that location or the likelihood of a sale from that location. We agree with the defendant.

“The essential elements of the crime of sale of narcotics within 1500 feet of a school are proof that the defendant sold narcotics and proof that the location of the transaction was within 1500 feet of a school.” State v. King, 289 Conn. 496, 520, 958 A.2d 731 (2008). “Mere possession of narcotics with an intent to sell at some unspecified point in the future, at some unspecified place, is not enough [to prove a violation of § 21a-278a (b)].” (Internal quotation marks omitted.) State v. Hedge, supra, 297 Conn. 659-60.

In this case, the defendant does not contest his conviction of possession of a cannabis-type substance with intent to sell by a person who is not drug-dependent; he contests only his conviction of possession of a controlled substance with intent to sell within 1500 feet of a school, arguing that there was absolutely no evidence concerning a sale or the likelihood of a sale from the location where the drugs were seized. He argues that the only evidence regarding the likely place of sale of the confiscated marijuana was the testimony of Sergeant Gary Angón, a member of the vice and intelligence division of the Waterbury police department, that when marijuana arrives in Waterbury in a compressed block form, it gets broken down and repackaged into small ziplock bags for sale on the street. This, he argues, does not lead to a reasonable inference that the sales would be conducted from the defendant’s home. We agree.

The evidence in this case tended to prove that the defendant was carrying a large, clear plastic container that held approximately ten pounds of compressed marijuana. Also present in the defendant’s house was plastic wrap with marijuana residue on it and a scale. Additionally, there was a shoe box on the kitchen table that contained a smaller scale, several plastic ziplock bags and $3033 in cash. Angón, the only person who testified about marijuana distribution, explained to the jury that: “the marijuana that comes into Waterbury primarily comes in — in bulk, and it comes compressed, so it’s easier to transport. If the marijuana’s all fluffed out like a pillow, it’s a lot harder to get it in without someone discovering that you’re moving a large amount of marijuana, so they compress it, they wrap it tightly in plastic, and then they’ll use dryer sheets, there’s several different methods, but dryer sheets is a very popular one for marijuana to throw off detection . . . .” Angón also explained that people involved in the drug trade typically, use “[a] small digital scale ... for weighing out drugs before they’re packaged” and that “a gallon sized bag is used for pounds, and the smaller ziplock bags are used for ounces.” He also opined that a common way of selling $20 worth of marijuana in Waterbury is to package it in knotted sandwich bags. Angón testified that he saw nothing in the defendant’s home that was indicative of marijuana that was kept for personal use. He stated: “People have had ounces for personal use. It’s used typically [in] a smaller amount just because you have the problem of storing it. It’s a . . . plant. It’s like every other plant. Once you cut it, it decays, it dries out, it rots . . . after a while, it just won’t be any good, so you’re not going to have large amounts of it for personal use because it will be no good. That’s why they try to vacuum pack it and seal it in bags, other than trying to hide the odor, try to keep it as fresh as possible.” Angón also opined that the street value of marijuana typically was approximately $1500 per pound. He also opined that “you wouldn’t see someone that was just involved in personal use of marijuana have nine pounds of marijuana, a pound scale, a smaller digital scale and these baggies. . . . [0]ne of the things that we look for when someone is possessing drugs is their amount of cash that they have on them, and $3000 worth of cash is a sign that someone’s a drug dealer.”

Although the jury might reasonably have inferred on the basis of the evidence that the marijuana seized from the defendant’s home would be repackaged for sale, the record is devoid of evidence from which the jury reasonably could have determined the precise location or locations of any such sales. Consequently, although the jury reasonably could have inferred that the defendant was planning to repackage and sell the marijuana, we conclude that, on the record before it, the jury only could speculate about the precise location or locations of any such sales, including, but not limited to, whether the defendant intended to sell such marijuana at or near his home.

The state relies on the presence of the marijuana and the evidence seized from the box on the kitchen table in the defendant’s home to support the defendant’s conviction for possession with intent to sell within a school zone. This box contained ziplock bags, a scale and $3033 in cash. The state argues that the presence of these items on the kitchen table, along with the large quantity of marijuana, leads to the reasonable inference that the marijuana was going to be packaged at that location for sale, and that inference leads to the next inference that the sales were going to take place at that location as well. Simply put, the state argues that because it reasonably could be inferred that the packaging of the marijuana was going to take place at the defendant’s home, that it also would be reasonable to infer that the sales would take place there. We cannot agree. In the absence of any evidence that would lead to a reasonable inference that the defendant intended to sell marijuana at or near his home, the defendant is entitled to a judgment of acquittal on the charge that he violated § 21a-278a (b). Compare State v. Reid, 123 Conn. App. 383, 393-94, 1 A.3d 1204, cert. denied, 298 Conn. 929, 5 A.3d 490 (2010) (evidence presented included defendant apprehended with drugs packaged for sale after he stayed for extended period of time in parking lot located in area known as open air drug market, in high crime area, that was center of heroin drug trade, within 1500 feet of public housing project), with State v. Hedge, supra, 297 Conn. 660-61 (record devoid of evidence indicating whether defendant in vehicle intended to sell drugs within 1500 feet of public housing project because “although the fact that [the housing project was] aplace where drugs frequently are sold might make it more likely that the defendant was planning to sell drugs there as opposed to some other discrete location, one can only speculate as to whether the defendant intended to sell drugs at or within 1500 feet of [the housing project]”).

The judgment is reversed only as to the conviction of possession of a controlled substance with intent to sell within 1500 feet of a public school and the case is remanded with direction to render judgment of not guilty as to that offense only. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The defendant also was convicted of possession of a cannabis-type substance with intent to sell by a person who is not drug-dependent in violation of General Statutes §§ 53a-8 and 21a-278 (b). That conviction, however, is not at issue in this appeal.

       Because there was insufficient evidence to support the defendant’s conviction of possession of a controlled substance with intent to sell within a school zone, we need not consider the propriety of the court’s instructions on the elements of that crime.

       The defendant filed motions for a judgment of acquittal at the close of the state’s case-in-ehief, at the close of all evidence and, again, just before sentencing.

       There also was no evidence of any actual sale or distribution having taken place.