author: ROBINSON, J.

text:
    KENNETH MARSHALL, JR. v. BRENDA J. SAWICKI
    (AC 28330)
    Lavine, Robinson and Stoughton, Js.

      Argued February 20
    officially released June 17, 2008

      Oliver B. Dickins, for the appellant (defendant).

      William H. Cashman, for the appellee (plaintiff).
   Opinion

ROBINSON, J.

The defendant, Brenda J. Sawicki, appeals from the judgment of the trial court, rendered in favor of the plaintiff, Kenneth Marshall, Jr. The defendant claims that the court erroneously found that she had acquired an interest in the plaintiffs business in breach of the fiduciary duty she owed to him. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of the defendant’s appeal. The plaintiff and the defendant’s husband are first cousins. When it became apparent that the plaintiffs drug dependency rendered him unable to operate his catering business, Family Styles Professional Catering, LLC, his mother contacted the defendant, a business broker and consultant, to discuss selling the business. The parties entered into a contract in June, 2003, titled “Exclusive Right to Represent Seller Contract,” to be in effect for six months from June 3 to December 3, 2003. Under the contract, the defendant, in her role as a broker, would produce a buyer for the business for a fee of 5 percent of the purchase price or exchange value. In October, 2003, a buyer, Ray Osland, offered to buy the business for $90,000 and agreed to pay $10,000 as a down payment. The defendant transferred by check approximately $3500 of that $10,000 to the plaintiff. The plaintiff entered a rehabilitation facility on December 1, 2003, two days prior to the expiration of the parties’ contract, and remained in that program until September 5, 2004.

The parties disagree on the events that followed Osland’s payment of the $10,000 deposit. The plaintiff maintains that on December 1, 2003, Osland purchased a 50 percent interest in the business and that the defendant obtained the remaining interest. The defendant asserts that she applied approximately $6500 of Osland’s deposit toward the payment of the business’ outstanding bills to maintain the business pending its sale and at the direction of the plaintiffs mother. She further maintains that the closing with Osland never occurred because Osland discovered that the equipment had been sold, the ovens did not work and the business did not pass health inspections. The defendant’s belief was that after Osland refused to proceed with the closing, the plaintiff and Osland agreed to work together to market and to sell the business to someone else. Thus, she never acquired any interest in the business. What the parties do agree on is that in April, 2004, Osland sold Family Styles Professional Catering, LLC, renamed Celebrations Catering, LLC, to Lunch Depot, LLC, for $25,000. The parties also do not dispute that the defendant never received any compensation under the contract. Neither the plaintiff nor the defendant were able to provide an explanation for how or why Osland became the sole owner of the business or how the plaintiff lost all of his interest in the business.

In September, 2004, the plaintiff brought this action against the defendant for breach of fiduciary duty. The defendant counterclaimed that the plaintiff had breached their contract because he had not notified her of an earlier offer to purchase or that the equipment had been sold. At trial, the plaintiff offered into evidence (1) the defendant’s business card, (2) an early offer from his friend to buy the business, (3) a purchase and sale agreement between the plaintiff and the defendant as the sellers and Osland as the buyer, signed by the plaintiff as the purchaser and as the seller, (4) a purchase and sale agreement between the plaintiff as the seller and the defendant as the buyer, signed by the plaintiff as the seller, (5) bank and utility statements relating to the business, (6) an e-mail from the business’ landlord providing an extension to the notice to quit the premises, (7) the parties’ contract and (8) the business’ profit and loss statements for 2001 and 2002. The defendant offered into evidence (1) a document giving the plaintiffs mother power of attorney, signed by the plaintiff, (2) a bank statement and (3) a bill of sale of the business to Lunch Depot, LLC, signed by Osland. After a two day trial, the court rendered judgment in favor of the plaintiff and awarded him $79,293.57 in damages and costs. This appeal followed. Additional facts will be set forth where necessary.

As a preliminary matter, we set forth our standard of review. On appeal, the defendant claims that the court erroneously determined that she had engaged in self-dealing to acquire an interest in the plaintiffs business in breach of her fiduciary duty to him. This claim is subject to the clearly erroneous standard of review. See Spector v. Konover, 57 Conn. App. 121, 126, 747 A.2d 39, cert. denied, 254 Conn. 913, 759 A.2d 507 (2000). “A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In determining whether the court’s decision was clearly erroneous, we must examine the court’s decision in the context of the heightened standard of proof imposed on a fiduciary.” (Citations omitted; internal quotation marks omitted.) Id., 126-27.

“A fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other. . . . The superior position of the fiduciary or dominant party affords him great opportunity for abuse of the confidence reposed in him. . . . Proof of a fiduciary relationship therefore imposes a twofold burden upon the fiduciary. Once a [fiduciary] relationship is found to exist, the burden of proving fair dealing properly shifts to the fiduciary. . . . Furthermore, the standard of proof for establishing fair dealing is not the ordinary standard of fair preponderance of the evidence, but requires proof either by clear and convincing evidence, clear and satisfactory evidence or clear, convincing and unequivocal evidence.” (Citations omitted; internal quotation marks omitted.) Dunham v. Dunham, 204 Conn. 303, 322-23, 528 A.2d 1123 (1987), overruled in part on other grounds by Santopietro v. New Haven, 239 Conn. 207, 213 n.8, 682 A.2d 106 (1996); see also Cadle Co. v. D’Addario, 268 Conn. 441, 455-57, 844 A.2d 836 (2004).

In the present case, the defendant seems to argue that because the court erroneously found that she had acquired an interest in the plaintiffs business, it improperly determined that the burden of proof had shifted to her to show fair dealing and that she failed to meet that burden of proof. To support her argument, she relies on Ramin v. Ramin, 281 Conn. 324, 349, 915 A. 2d 790 (2007), and Cadle Co. v. D’Addario, supra, 268 Conn. 455-57, to assert that Dunham requires the plaintiff to show a tainted transaction before the burden shifts to the fiduciary to show fair dealing by clear and convincing evidence. The defendant, however, has failed to provide this court with an adequate record to review her claim.

“[A]n appellate tribunal cannot render a decision without first fully understanding the disposition being appealed. . . . Our role is not to guess at possibilities, but to review claims based on a complete factual record .... Without the necessary factual and legal conclusions . . . any decision made by us respecting [the defendant’s claims] would be entirely speculative.” Cianbro Corp. v. National Eastern Corp., 102 Conn. App. 61, 72, 924 A.2d 160 (2007). In this case, the court did not set forth adequately the factual and legal basis on which it determined that the defendant breached her fiduciary duty.

In its memorandum of decision, the court determined that a fiduciary relationship existed between the parties and that the defendant had failed to sustain her burden of proving fair dealing. The court observed that “any interest the plaintiff had in this business had evaporated” by the time Osland sold the business to the Lunch Depot, LLC, but did not find any facts in relation to that transaction. More importantly, it was unclear whether the court found specifically that the defendant acquired any interest in the plaintiffs business. With respect to the purchase and sales agreement between the plaintiff and the defendant, the court stated: “It can be seen that the defendant is now a purchaser of the plaintiffs business and no longer a mere sales agent. This agreement, however, contains the plaintiffs signature but no signature of the defendant. As such, the court cannot find that [the document] constitutes a binding agreement to purchase.” Similarly, after discussing the sales agreement between the plaintiff and the defendant as the sellers and Osland as the buyer, the court observed: “It would appear, therefore, that under the defendant’s direction, the plaintiff now had a minority ownership interest in his business. Once again, however, this sales agreement bears only the signature of the plaintiff, who signed both as the purchaser and as the seller.” Thus, the court did not articulate in its memorandum of decision the evidentiary basis from which it arrived at its findings and conclusions.

“It is well established that [i]t is the appellant’s burden to provide an adequate record for review. ... It is, therefore, the responsibility of the appellant to move for an articulation or rectification of the record where the trial court has failed to state the basis of a decision ... to clarify the legal basis of a ruling ... or to ask the trial judge to rule on an overlooked matter.” (Internal quotation marks omitted.) Schoomnaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 232, 828 A.2d 64 (2003). In the present case, we cannot determine what evidence the court relied on to determine that the burden of proof had shifted to the defendant to show fair dealing or the evidentiary basis from which it concluded that the defendant failed to meet her burden. Without further articulation, we cannot engage in meaningful review of the defendant’s claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant presents three issues on appeal: “(1) Did the defendant . . . perform her contractual obligation under her listing contract with the plaintiff? (2) Does the burden of proof doctrine of Dunham v. Dunham, 204 Conn. 303, 322-23, 528 A.2d 1123 (1987), overruled in part on other grounds by Santopietro v. New Haven, 239 Conn. 207, 213 n.8, 682 A.2d 106 (1996), relating [to] the fairness of transactions between a fiduciary and his client, also apply to the question of whether such a transaction occurred? [and] (3) Was the trial court’s finding that the defendant became a purchaser of the plaintiffs business and no longer a mere sales agent based on contract proposals, which were not signed or adopted by the defendant, clearly erroneous.” (Internal quotation marte omitted.)
      After considering the entire record, the parties’ appellate briefs and arguments, it appears that the only issue in this case is whether the court found that the defendant acquired an interest in the plaintiffs business, thereby shifting the burden of proof to her to show fair dealing by clear and convincing evidence.

       Our Supreme Court stated in Cadle Co. that “[a]lthough not always expressly stated, the basis upon which the aforementioned burden shifting and enhanced burden of proof rests is, essentially, that undue influence will not be presumed . . . however . . . where a fiduciary relation exists between the parties to a transaction or contract, and where one has a dominant or controlling force or influence over the other. . . . [I]f the superior party obtains a possible benefit, equity raises a presumption against the validity of the transaction or contract, and casts upon such party the burden of proving fairness, honesty, and integrity in the transaction or contract. . . . Therefore, it is only when the confidential relationship is shown together with suspicious circumstances, or where there is a transaction, contract, or transfer between persons in a confidential or fiduciary relationship, and where the dominant party is the beneficiary of the transaction, contract, or transfer, that the burden shifts to the fiduciary to prove fair dealing. . . . [W]hen a breach of fiduciary duty is alleged, and the allegations concern fraud, self-dealing or a conflict of interest, the burden of proof shifts to the fiduciary to prove fair dealing by clear and convincing evidence.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Cadle Co. v. D'Addario, supra, 268 Conn. 456-57.

       “[0]nce it has been shown that a fiduciary has engaged in self-dealing, he has the burden to establish the fairness of the transaction by clear and convincing evidence . . . (Citation omitted.) Ramin v. Ramin, supra, 281 Conn. 349-50.


source: Caselaw Access Project

author: WEST, J.

license: Public Domain

text:
    SOMERS WEST TOWNE HOUSES, INC. v. LAS PROPERTIES LIMITED PARTNERSHIP
    (AC 28669)
    DiPentima, Beach and West, Js.

      Argued March 27
    officially released June 17, 2008

      James W. Sherman, with whom was Bruce D. Tyler, for the appellant (defendant).

      Patricia A. Ayars, for the appellee (plaintiff).
   Opinion

WEST, J.

The defendant, LAS Properties Limited Partnership, appeals from the summary judgment rendered by the trial court in favor of the plaintiff, Somers West Towne Houses, Inc. On appeal, the defendant claims that the court improperly decided two genuine issues of material fact and made incorrect conclusions thereon. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of the defendant’s appeal. The plaintiff is a common interest community owners association, which consists of twelve units. Unit ten in this community is owned by the defendant. Lucille Sherman is the sole general partner of the defendant. On August 30, 2004, a unit owners’ meeting was held regarding the ratification of a proposed budget for the community. Sherman did not attend the meeting. The other eleven unit owners attended the meeting and voted on the ratification of the budget proposal. The budget was ratified by a vote of five for ratification and six against it. Thereafter, the defendant refused to pay its unit’s budgetary assessments, and, as a consequence, the plaintiff brought a foreclosure action against the defendant in January, 2005. In February, 2005, the defendant filed a counterclaim against the plaintiff. The gravamen of the counterclaim is premised on the illegality of the ratification vote. In March, 2006, the court rendered summary judgment in favor of the plaintiff on its complaint as to the liability of the defendant. On January 18, 2007, the plaintiff filed a motion for summary judgment on the counterclaim and submitted documents and affidavits in support of the same. Although the defendant filed a memorandum of law in opposition to the motion for summary judgment, it did not submit any documents or affidavits in support thereof. On March 8, 2007, the court granted the plaintiffs motion for summary judgment, rendered judgment in favor of the plaintiff on the counterclaim and issued a memorandum of decision. This appeal followed. Additional facts will be set forth as necessary.

We first set forth the legal principles that guide our review. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . The test is whether the party moving for summary judgment would be entitled to a directed verdict on the same facts. . . . Our review of the trial court’s decision to grant the defendant’s motion for summary judgment is plenary.” (Internal quotation marks omitted.) Mazurek v. Great American Ins. Co., 284 Conn. 16, 26-27, 930 A.2d 682 (2007).

I

The defendant first claims that the court improperly decided an issue of material fact and made an incorrect conclusion thereon. Specifically, the defendant asserts that the court improperly engaged in interpreting the meaning of General Statutes § 47-245 (c) and subsequently concluded improperly that the budget was ratified pursuant to that statute.

First, the defendant argues that by interpreting the meaning of § 47-245 (c), the court improperly decided an issue of fact. We do not agree. “Issues of statutory construction raise questions of law, over which we exercise plenary review. . . . The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.” (Internal quotation marks omitted.) Trumbull v. Palmer, 104 Conn. App. 498, 507, 934 A.2d 323 (2007), cert. denied, 286 Conn. 905, 944 A.2d 981 (2008). Because the meaning of a statute is a question of law, the court properly engaged in the act of construing the meaning of the statute at issue in the present case.

Second, the defendant argues that the court improperly concluded that the budget was ratified pursuant to § 47-245 (c) of the Common Interest Ownership Act, General Statutes § 47-200 et seq. In its memorandum of decision, the court noted that the statute provides that “unless ‘a majority of all unit owners’ rejects a budget proposal, ‘the budget is ratified, whether or not a quorum is present’ . . . .” (Emphasis in original.) The court then concluded that “in order to defeat ratification in the present situation, at least seven of the twelve unit owners would have had to oppose the proposal. Because only six nay votes were cast, the budget was deemed ratified under ... § 47-245 (c).”

In its brief, the defendant argues that the court improperly omitted the words “at that meeting” when citing the statute in support of the conclusion that the budget had been ratified. The defendant argued, therefore, that the court incorrectly concluded that a majority of all unit owners was needed to reject the budget proposal. Instead, the defendant argued, only a majority of the unit owners present at the meeting was needed to reject the budget proposal. We disagree.

Section 47-245 (c) provides in relevant part: “Unless at that meeting a majority of all unit owners, or any larger vote specified in the declaration, reject the budget, the budget is ratified, whether or not a quorum is present. . . ,” It is clear from the wording of the statute that “at that meeting” is not modifying “all unit owners.” “[A]t that meeting” refers to the meeting mentioned in the first sentence of § 47-245 (c). See footnote 2. Therefore “at that meeting” describes simply where the vote on the proposed budget is to take place. The statute clearly provides that a majority of all unit owners is necessary to reject a budget proposal. As a result, we conclude that the court interpreted the statute correctly and properly concluded that a majority of all unit owners was necessary to reject the proposed budget.

II

The defendant next claims that the court improperly decided another issue of material fact and made an incorrect conclusion thereon. Specifically, the defendant asserts that the court decided the issue of whether the general partner of the defendant was the only individual with the authority to vote as the sole owner of unit ten and concluded improperly that, in fact, the general partner was the only individual with the authority to vote as the owner of unit ten.

First, the defendant argues that the court’s concluding that the general partner of the defendant was the only individual with the authority to vote as the sole owner of unit ten constituted the court’s finding a material fact. We do not agree. The court came to this conclusion in several steps. First, the court stated that “[t]he act defines ... a ‘unit owner’ as ‘a declarant or other person who owns a unit.’ General Statutes § 47-202 (32). A partnership is a ‘person’ under this definition. General Statutes § 47-202 (22).” Next, the court cited the defendant’s bylaws in stating that “[t]he bylaws of the plaintiff specify that if a partnership owns a unit, any vote on behalf of the partnership ‘may be cast by any general partner of the owning partnership in the absence of express notice of the designation of a specific person by the owning partnership . . . .’” (Emphasis in original.) Finally, the court concluded that Sherman, the sole general partner of the defendant, failed to attend the August 30, 2004 meeting and that in addition, “[n]o notice of a designated person entitled to vote on behalf of the partnership instead of the general partner was given, express or otherwise.”

The court came to this conclusion by construing a statute, interpreting the plaintiffs bylaws and drawing a conclusion on the basis of uncontested facts. The court, therefore, did not decide an issue of material fact. As noted previously, construing a statute is a question of law. See part I. Additionally, interpreting the bylaws of the plaintiff is also a matter of law. See Weldy v. Northbrook Condominium Assn., Inc., 279 Conn. 728, 736, 904 A.2d 188 (2006) (“an examination of the relevant condominium documents . . . presents a question of law that we review de novo” [emphasis in original]). Finally, drawing the factual conclusion that Sherman was the only person with the authority to vote, in the absence of any contested issue of material fact, is proper pursuant to the standard for rendering judgment on a motion for summary judgment. See Practice Book § 17-49.

Next, the defendant claims that the court improperly concluded that only the general partner of the defendant was authorized to cast a vote as the owner of unit ten. Again, we disagree.

The following additional facts are relevant to the defendant’s claim. Thomas Sherman, a resident of unit ten, was present at the August 30, 2004 meeting. He stated, at the meeting, that he did not know who owned unit ten and did not know if he was authorized to vote on behalf of the owner of unit ten. Additionally, he had no document authorizing him to vote on behalf of the owner of unit ten. After the records of the plaintiff were examined and it was determined that unit ten was owned by the defendant, the president presiding at the meeting, Frank LoBianco, determined that Thomas Sherman was not qualified to vote on behalf of unit ten. The eleven unit owners present then voted on the proposed budget. Six owners voted to oppose it, while five owners voted to accept it. Therefore, the proposed budget was adopted because a majority of all unit owners, namely, seven, did not vote to reject the budget.

The defendant argues that Lucille Sherman, the general partner, was not the only person who was authorized to vote on behalf of unit ten. In fact, it argues that a co-owner, such as Thomas Sherman, was authorized to cast a vote pursuant to a valid proxy. The defendant cites several authorities for this proposition. For instance, it cites article four of the certificate of incorporation of the plaintiff, which provides in relevant part: “If a unit is owned by more than one person, such persons shall agree among themselves how a vote for such unit’s membership is to be cast. ... A vote by a co-owner for the entire unit’s membership interest shall be deemed to be pursuant to a valid proxy, unless another co-owner of the same unit objects at the time the vote is cast, in which case such membership’s vote shall not be counted.” The defendant also cites § 3-110 (a) of the Uniform Common Interest Ownership Act, Public Acts 1983, No. 83-474, and § 3.8 of the plaintiffs bylaws. All of these provisions make the same assertion as article four of the plaintiffs certificate of incorporation cited previously, namely, that when a unit is owned by more than one person, a vote by a co-owner shall be deemed to be pursuant to a valid proxy.

Section 47-202 (32) provides in relevant part: “ ‘Unit owner’ means a declarant or other person who owns a unit . . . .” Section 47-202 (22) provides: “ ‘Person’ means an individual, corporation, limited liability company, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or other legal or commercial entity.” (Emphasis added.) The records of the plaintiff demonstrate that the defendant owned unit ten, as a partnership, not as a group of specified individuals. Therefore, the bylaws of the plaintiff determine the voting rights of a partnership owning a condominium as part of the plaintiffs association. Section 3.8 (c) of the plaintiffs bylaws is the applicable provision. It provides in relevant part: “The vote of a partnership may be cast by any general partner of the owning partnership in the absence of express notice of the designation of a specific person by the owning partnership. The moderator of the meeting may require reasonable evidence that a person voting on behalf of a corporation, partnership or business trust owner is qualified so to vote.” In the present case, the general partner, Lucille Sherman, was not present at the August 30, 2004 meeting, and no notice was given of the designation of a specific person entitled to vote on behalf of the partnership. Therefore, Thomas Sherman properly was denied the right to vote on behalf of unit ten, and the proposed assessments were accepted properly. As a result, we conclude that the court properly concluded that the general partner of the defendant was the only individual with the authority to vote as the sole owner of unit ten.

The judgment is affirmed.

In this opinion the other judges concurred.

       The minutes of the August 30, 2004 meeting provide in relevant part: “According to our Association bylaws, seven out of twelve owners have to oppose a decision by the Association Executive Board that requires a vote. The situations to which this voting rule applies are ratifications to the bylaws and an increase of common expenses by more than 15 percent of current amount due.” In the present case, because only six owners voted to oppose the budget proposal, the budget proposal was ratified.

       General Statutes § 47-245 (c) provides: “Within thirty days after adoption of any proposed budget for the common interest community, the executive board shall provide a summary of the budget to all the unit owners and shall set a date for a meeting of the unit owners to consider ratification of the budget not less than fourteen nor more than thirty days after mailing of the summary. Unless at that meeting a majority of all unit owners, or any larger vote specified in the declaration, reject the budget, the budget is ratified, whether or not a quorum is present. In the event the proposed budget is rejected, the periodic budget last ratified by the unit owners shall be continued until such time as the unit owners ratify a subsequent budget proposed by the executive board.”

       The defendant presented no evidence to demonstrate that any individual, other than Sherman, was authorized to vote on behalf of the defendant.

       Although the defendant cites several different authorities to support its argument that the general partner was not the only individual authorized to vote on behalf of unit ten, all of the authorities it cites refer to the voting rights of multiple unit owners. In the present case, the only evidence presented indicated that the defendant’s unit had only one owner—the partnership, itself. The defendant presented no evidence to suggest that the defendant partnership had multiple owners. Therefore, the authorities to which the defendant cited do not apply to the present situation.


author: PETERS, J.

text:
    STATE OF CONNECTICUT v. LEON TELFORD
    (AC 27162)
    Bishop, Harper and Peters, Js.
    Argued March 11
    officially released June 17, 2008

      William B. Westcott, special public defender, for the appellant (defendant).

      Margaret Gaffney Radionovas, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Roger S. Dobris, senior assistant state’s attorney, for the appellee (state).
   Opinion

PETERS, J.

In this criminal appeal from a conviction of sexual assault and risk of injury to a child, the defendant contests the admission into evidence of the redacted videotape and transcript of a diagnostic interview of the minor complainant, a twelve year old girl. The interview in question was conducted by a licensed clinical social worker at the Yale Sexual Abuse Clinic at Yale-New Haven Hospital. We conclude that this evidence properly was admitted under the medical exception to the rule against hearsay and affirm the judgment of the trial court.

In a nine count information filed on February 25, 2004, the state charged the defendant, Leon Telford, with three counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), three counts of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (B) and three counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). These charges related to three alleged incidents involving the defendant’s conduct with respect to the twelve year old complainant. After a jury trial, the defendant was found guilty only of the charges arising out of one of the three alleged incidents. The trial court sentenced him to a total effective term of fifteen years, followed by five years of special parole. The defendant has appealed.

The jury reasonably could have found the following facts regarding the incident of sexual abuse for which it found the defendant guilty. On January 8, 2004, the complainant, who was living in New Haven with her aunt, who is her legal guardian, went to visit her mother and siblings at a different address in the city. The defendant, who was living there with her mother, kissed the complainant and abused her sexually by inappropriately touching her breasts and putting his fingers inside her genitalia. Although the complainant protested orally, she did not immediately report the defendant’s conduct to anyone else.

Several weeks later, on January 26, 2004, the complainant told an adult volunteer in her after-school program that she had been sexually abused. The school notified the complainant’s aunt as well as her mother and the defendant. The defendant and the complainant’s mother both responded by accusing the complainant of lying. The school also notified the police department.

On the following day, the complainant was examined by a pediatrician. Although the pediatrician did not find any physical confirmation of an inappropriate sexual encounter, she promptly reported the alleged sexual abuse to an investigator for the department of children and families (department). The department investigator then herself interviewed the complainant, recommended therapy or counseling at the Clifford Beers Clinic and referred the complainant for further evaluation by the Yale Sexual Abuse Clinic.

At the Yale Sexual Abuse Clinic, which is located in the primary care center of Yale-New Haven Hospital, a licensed clinical social worker conducted a videotaped diagnostic interview of the complainant on January 30, 2004. The social worker subsequently discussed this interview with the clinic’s pediatric nurse practitioner. Approximately one month later, the nurse practitioner herself interviewed the complainant at the clinic and conducted a physical examination.

At the defendant’s trial, the jury heard testimony describing the complainant’s allegations of sexual abuse from the complainant herself and from the after-school volunteer, the pediatrician, the department investigator, the social worker and the nurse practitioner. No issue has been raised on appeal about the admissibility of this evidence.

The evidence that is in dispute is the redacted videotape and transcript of the social worker’s interview of the complainant at the Yale Sexual Abuse Clinic. At trial, the defendant objected to their admission on two grounds: (1) the inapplicability of the medical treatment exception to the hearsay rule and (2) the improper bolstering of the complainant’s credibility. The defendant renews these objections in his appeal to this court.

I

THE MEDICAL TREATMENT EXCEPTION

The defendant maintains, for two reasons, that the medical treatment exception to the rule against hearsay did not justify admitting into evidence the redacted videotape and transcript of the interview of the complainant by the clinical social worker at the Yale clinic. He claims that (1) the record does not establish that the complainant understood her statements in this interview to be part of a process for obtaining medical treatment and (2) because a pediatrician already had examined the complainant, the record demonstrates that the interview was conducted not for diagnostic or treatment purposes, but rather to develop expert testimony to be used at trial. We disagree.

Our Supreme Court recently enunciated a two part standard of review for claims of evidentiary error. In State v. Saucier, 283 Conn. 207, 926 A.2d 633 (2007) (en banc), the court stated: “To the extent a trial court’s admission of evidence is based on an interpretation of the [Connecticut] Code of Evidence, our standard of review is plenary. For example, whether a challenged statement properly may be classified as hearsay and whether a hearsay exception properly is identified are legal questions demanding plenary review. They require determinations about which reasonable minds may not differ; there is no ‘judgment call’ by the trial court .... We review the trial court’s decision to admit evidence, if premised on a correct view of the law, however, for an abuse of discretion.” (Citations omitted.) Id., 218.

Pursuant to Saucier, we first must decide whether the trial court properly interpreted § 8-3 (5) of the Connecticut Code of Evidence (2000), which describes the medical treatment exception to the hearsay rule. This section provides in relevant part: “The following are not excluded by the hearsay rule, even though the declarant is available as a witness ... (5) ... A statement made for purposes of obtaining medical treatment or advice pertaining thereto and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof, insofar as reasonably pertinent to the medical treatment or advice.”

The legal principles relating to the medical treatment exception are well settled. Admissibility of out-of-court statements made by a patient to a medical care provider depends on whether the statements were made for the purposes of obtaining medical diagnosis or treatment; State v. Kelly, 256 Conn. 23, 44, 770 A.2d 908 (2001); and on whether the declarant’s statements reasonably were related to achieving those ends. State v. DePastino, 228 Conn. 552, 565, 638 A.2d 578 (1994). The term “medical” encompasses psychological as well as somatic illnesses and conditions. State v. Wood, 208 Conn. 125, 133-34, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988).

In sexual abuse cases, statements made by the complainant about the identity of the person causing the injury may be found relevant to proper diagnosis and treatment. State v. Kelly, supra, 256 Conn. 45; see also C. Tait & E. Prescott, Connecticut Evidence (4th Ed. 2008) § 8.20.4, pp. 522-23. Furthermore, statements made by a sexual assault complainant to a social worker may fall within the exception if the social worker is found to have been acting within the chain of medical care. State v. Cruz, 260 Conn. 1, 10, 792 A.2d 823 (2002).

The defendant does not take issue with any of these established principles governing the admissibility of evidence under the medical care exception. He argues instead that, under the circumstances of this case, admission of the videotape was an improper application of these principles. Our review of these claims is plenary. State v. Saucier, supra, 283 Conn. 218.

A

The defendant first claims that the medical care exception did not authorize admission of the videotape into evidence because the state did not establish that the complainant understood that her statements to the clinical social worker at the Yale Sexual Abuse Clinic were part of a process for her medical diagnosis or treatment. In his view, a predicate for the applicability of the hearsay exception is evidence that the declarant subjectively understood that she was describing what had happened to her so that she would obtain treatment. The state argues, in response, that such a subjective understanding need not be proven if the objective circumstances of the interview would support an inference that a juvenile declarant knew of its medical purpose. We agree with the state.

Although “[t]he medical treatment exception to the hearsay rule requires that the statements be both pertinent to treatment and motivated by a desire for treatment”; State v. Dollinger, 20 Conn. App. 530, 535, 568 A.2d 1058, cert. denied, 215 Conn. 805, 574 A.2d 220 (1990); in cases involving juveniles, our cases have permitted this requirement to be satisfied inferentially. For instance, in State v. Maldonado, 13 Conn. App. 368, 372, 536 A.2d 600, cert. denied, 207 Conn. 808, 541 A.2d 1239 (1988), a Spanish speaking hospital security guard who was assisting an examining physician in taking the medical history of a three year old sexual abuse victim was permitted to testify about the victim’s nonverbal assertions that indicated that her father had sexually abused her. We reasoned that the child’s representations were reliable in light of her awareness that the security guard was questioning her on behalf of the examining physician and that she had a condition that necessitated medical treatment. Id. Similarly, in State v. Dollinger, supra, 536, a case involving a two year old victim, we observed: “Even if [the victim] was too young to formulate consciously the motive of advancing her own health by being truthful with the doctor, the facts and circumstances here are consistent with that purpose. [The victim’s] complaint of pain, coupled with the physical manifestations of injury could have led the doctor, an expert in child sexual abuse, to conclude that the child was aware of her discomfort and her need for medical attention.”

In this case, the complainant’s testimony permitted an inference that she understood that her statements to the social worker were made for the purpose of treatment. Prior to the state’s proffer of the redacted videotape and transcript into evidence, the complainant had testified that the defendant had touched her breasts and inside her genitalia and that this conduct had caused her to feel “upset,” “mad” and “scared.” In addition, when later shown an exhibit of a female body diagram, the complainant testified that she had first seen the diagram at Yale-New Haven Hospital, where she had talked to a woman about the sexual abuse. Given this testimony, and in light of our precedents, the trial court properly ruled that the complainant’s statements were admissible under the medical treatment exception to the rule against hearsay.

B

In the alternative, the defendant claims that the court misapplied the medical treatment exception in admitting the redacted videotape and transcript into evidence because the interview had been conducted for a forensic rather than for a medical purpose. Relying on the fact that the pediatrician’s examination of the complainant had disclosed no physical evidence that she had been sexually abused, the defendant opines that there was no necessity for further examination of the complainant’s mental or physical health. From this hypothesis, the defendant infers that the clinical social worker at the Yale Sexual Abuse Clinic was motivated to interview the complainant not by concerns about the victim’s mental or physical health but by a desire to educate a nurse who was her colleague at the clinic so that the nurse subsequently would be able to present expert testimony at the defendant’s trial. We disagree.

As an initial matter, it is questionable whether the defendant adequately preserved this claim for appellate review. At trial, the defendant objected to the admission of the videotape and the transcript on the ground that the pediatrician’s prior medical examination and the social worker’s admission that she was not herself a medical treatment provider demonstrated the inapplicability of the medical exception to the hearsay rule. This objection was at best tangential to his present claim that the videotape served no medical purpose but was produced to assist a nurse at the clinic in obtaining information for her own subsequent interview of the complainant and for her subsequent testimony as an expert witness at trial. See Daley v. McClintock, 267 Conn. 399, 404-405, 838 A.2d 972 (2004). The defendant does not argue that this claim is of constitutional magnitude and therefore merits Golding review; see State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989); or that it is eligible for plain error review. See Practice Book § 60-5; Sorrentino v. All Seasons Services, Inc., 245 Conn. 756, 768, 717 A.2d 150 (1998).

Even if we were to reach the merits of the defendant’s claim, he could not prevail. Having rejected the defendant’s contention that a physician’s physical examination of the complainant is dispositive of the complainant’s need for further medical counseling, we have established that a fact finder reasonably could have found that the clinic proceedings in this case were conducted for a medically legitimate purpose. Om-Supreme Court came to a similar conclusion in State v. Arroyo, 284 Conn. 597, 632-33, 935 A.2d 975 (2007). On this record, the fact that another medical professional interviewer subsequently had access to the videotape and transcript of the complainant’s interview is irrelevant to the admissibility of this documentary evidence at trial. State v. Cruz, supra, 260 Conn. 10. As a matter of law, it follows that the trial court’s evidentiary ruling was proper.

II

BOLSTERING

The defendant’s final claim on appeal is that the redacted videotape and transcript were inadmissible at trial because this evidence unfairly bolstered the complainant’s testimony. Because he raised this claim at trial, it is properly before us for review. We agree, however, with the state that it has no merit.

To prevail on this claim, the defendant must establish that the trial court’s admission of the contested evidence was an abuse of the court’s exercise of its discretion. State v. Saucier, supra, 283 Conn. 218. “[T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. . . . This deferential standard is applicable to evidentiary questions involving hearsay, generally . . . and to questions relating to prior consistent statements, specifically.” (Citations omitted; internal quotation marks omitted.) State v. Hines, 243 Conn. 796, 801-802, 709 A.2d 522 (1998).

Emphasizing that his conviction was based entirely on the credibility of the complainant’s testimony about a single incident, the defendant urges us to take a critical view of the state’s use of the medical evidence adduced in the complainant’s videotaped interview. In his view, the videotape was both prejudicial and nonessential, because it simply corroborated the complainant’s testimony at trial.

The state emphasizes, however, that the defendant has not argued that the videotape evidence should have been excluded because it was irrelevant. As the state persuasively argues, viewing the videotape permitted the jury to scrutinize the complainant’s version of events at a point in time much closer to the events themselves than her trial testimony.

Furthermore, the defendant has not cited any authority in support of his contention that relevant evidence is inadmissible simply because it is corroborative. His argument perhaps can be read as an implied criticism of the doctrine of constancy of accusation as articulated in State v. Troupe, 237 Conn. 284, 304, 677 A.2d 917 (1996) (en banc), but he has not raised that issue in this appeal. Without a plausible claim that the trial court’s evidentiary ruling deviated from the strictures set out in Troupe, the defendant has not established an abuse of discretion in the court’s admission of the transcript and the videotape into evidence in this case.

The judgment is affirmed.

In this opinion the other judges concurred.

       As authorized by the department pursuant to General Statutes § 17a-106a, the Yale clinic provides a multidisciplinary team response to allegations of sexual abuse. The statute provides in relevant part: “(a) The Commissioner of Children and Families, may as department head of the lead agency, and the appropriate state’s attorney establish multidisciplinary teams for the purpose of reviewing particular cases or particular types of cases or to coordinate the prevention, intervention and treatment in eachjudicial district to review selected cases of child abuse or neglect. The purpose of such multidisciplinary teams is to advance and coordinate the prompt investigation of suspected cases of child abuse or neglect, to reduce the trauma of any child victim and to ensure the protection and treatment of the child. . . .” General Statutes § 17a-106a.

       In sexual assault cases, under the doctrine of “constancy of accusation,” a complainant’s out-of-court statements to third party witnesses are admissible to a limited extent to corroborate the complainant’s testimony. See State v. Troupe, 237 Conn. 284, 304, 677 A.2d 917 (1996) (en banc). Statements about the identity of the defendant are admissible under Troupe. Id.; see also C. Tait & E. Prescott, Connecticut Evidence (4th Ed. 2008) § 6.37.2, pp. 388-89 (highlighting potential for prejudice inherent in constancy of accusation doctrine).
      In accordance with Troupe, the trial court gave the jury a “constancy of accusation” witness instruction to inform the jury that the testimony of the after-school volunteer and the department investigator was admissible solely to corroborate the complainant’s testimony and not for substantive purposes. See State v. Troupe, supra, 237 Conn. 304.

       The trial court, having reviewed the evidence, redacted the videotape and transcript during trial.

       Wc apply the abuse of discretion standard of review to the defendant’s bolstering claim in part II.

       The state also contends that the defendant did not preserve this claim at trial because he did not raise this specific ground in his challenge to the admissibility of the evidence in the trial court. The trial transcript reveals, however, that the defendant objected to the hearsay evidence on the ground that the declarant’s statements to the social worker were not made “for the purpose of ... a person seeking medical treatment.” The claim merits review because the question of whether the complainant was seeking treatment falls within 1he scope of his objection at trial.

       We note that because of the difficulty of determining whether a child subjectively understood the purpose of his or her statements, some jurisdictions have declined to apply the medical treatment exception in cases involving young children. See, e.g., Webb v. Lewis, 44 F.3d 1387, 1390-91 (9th Cir. 1994), cert. denied, 514 U.S. 1128, 115 S. Ct. 2002, 131 L. Ed. 2d 1003 (1995); United States v. White, 11 F.3d 1446, 1450 (8th Cir. 1993) (insufficient evidence to establish that child-complainant understood social worker was conducting interview in order for social worker or another to provide medical diagnosis or treatment); Ring v. Erickson, 983 F.2d 818, 820 (8th Cir. 1993) (no evidence that child knew she was talking to physician); State v. Wade, 136 N.H. 750, 756, 622 A.2d 832 (1993) (state failed to establish that child understood medical purpose of examination). Other jurisdictions, however, have looked to objective record evidence to determine whether the child declarant had the proper treatment motive. See, e.g., United States v. Renville, 779 F.2d 430, 438-39 (8th Cir. 1985) (physician explained purpose of examination to eleven year old complainant); State v. Dever, 64 Ohio St. 3d 401, 410, 596 N.E.2d 436 (1992) (“[ojnce the child is at the doctor’s office, the probability of understanding the significance of the visit is heightened and the motivation for diagnosis and treatment will normally be present”), cert. denied, 507 U.S. 919, 113 S. Ct. 1279, 122 L. Ed. 2d 672 (1993).

       In overruling the defendant’s objection to the admission of this evidence, the trial court stated that “under these circumstances, where the statement is made by 1he declarant ... in a hospital, in a clinic, to a person who is part of a . . . medical services team . . . the person seeking medical treatment, i.e., the young girl is likely to want to tell the truth.” The court also observed that the complainant “was plainly in a position where she was seeking medical treatment.”

       it is undisputed that the state qualified the nurse as an expert witness.

       The defendant’s argument highlights the potential for undue prejudice arising from repeated iteration of the details of a sexual assault, which was the same concern animating our Supreme Court’s decision in State v. Troupe, 237 Conn. 284, 677 A.2d 917 (1996) (en banc). In Troupe, the court narrowed the constancy of accusation exception to the hearsay rule, declaring that “a person to whom a sexual assault victim has reported the assault may testify only with respect to the fact and timing of the victim’s complaint; any testimony by the witness regarding the details surrounding the assault must be strictly limited to those necessary to associate the victim’s complaint with the pending charge, including, for example, the time and place of the attack or the identity of the alleged perpetrator.” Id., 304. The Troupe court also made clear, however, that its ruling “does not affect those cases in which the details of a sexual assault complaint are otherwise admissible”; id., 304 n.19; including the medical treatment exception to the rule against hearsay. State v. Williams, 65 Conn. App. 449, 461, 783 A.2d 53, cert. denied, 258 Conn. 927, 783 A.2d 1032 (2001).


author: PELLEGRINO, J.

text:
    RUI M. NASCIMENTO v. CONNECTICUT LIFE AND CASUALTY INSURANCE COMPANY
    (AC 28856)
    Flynn, C. J., and McLachlan and Pellegrino, Js.

      Argued March 28
    officially released June 17, 2008

      Peter M. Appleton, for the appellant (plaintiff).

      Edward W. Gasser, with whom, on the brief, was Kirby G. Huget, for the appellee (defendant).
   Opinion

PELLEGRINO, J.

The plaintiff, Rui M. Nascimento, appeals from the judgment of the trial court, rendered after a trial to the court, finding him 25 percent comparatively negligent for damages sustained in an automobile accident. On appeal, the plaintiff claims that (1) the court’s findings of fact were contrary to the evidence presented at trial, (2) the court improperly concluded that he violated General Statutes § 14-283 (e) and (3) the evidence presented at trial did not support the court’s finding of comparative negligence. We affirm the judgment of the trial court.

The following facts are necessary for the resolution of the plaintiffs appeal. In the early morning of June 2,2002, the plaintiff was driving his automobile on South Main Street in West Hartford. He was intending to turn left onto New Britain Avenue when he noticed police cars approaching from about one quarter of a mile behind him with their lights flashing. The plaintiff, having the traffic signal in his favor, attempted to turn left rather than immediately driving to the right side of the road. As he was turning, the plaintiffs automobile was struck on the driver’s side by a stolen vehicle that the police were pursuing. The stolen vehicle was driven by an uninsured motorist, Thomas J. Homar. As a result of the collision, the plaintiffs automobile was pushed into a telephone pole and damaged. The plaintiff suffered injuries to his upper back and lower neck that required medical treatment.

The plaintiff thereafter filed a complaint against the defendant, Connecticut Life & Casualty Insurance Company, seeking to recover damages under the terms of his automobile insurance policy. The defendant pleaded comparative negligence as a special defense. Prior to trial, the parties stipulated to the maximum value of the plaintiffs personal injuries, medical bills and lost wages from his regular employment and that Homar was uninsured at the time of the accident. The parties agreed to a trial to the court and limited the issues to the plaintiffs comparative negligence and whether he could recover lost profits from a business venture he had started prior to the accident. The matter subsequently was tried to the court on May 31, 2006.

In its memorandum of decision, the court found the plaintiff to be 25 percent comparatively negligent. The court also found that the plaintiff was not entitled to recover lost profits from his business venture. The plaintiff challenged the court’s determination of comparative negligence but has not challenged the court’s denial of lost profits. Additional facts will be set forth as necessary.

I

The plaintiff first claims that several of the court’s findings of fact were contrary to the evidence. His claim rests exclusively with portions of the following excerpt from the court’s memorandum of decision: “On June 2, 2002, at around 5 a.m., the plaintiff was driving his motor vehicle from his home and on his way to work in West Hartford. The plaintiff drove his vehicle down South Main Street in West Hartford. When he approached the exit ramp for Interstate 84 he could see police cars coming over the highway overpass. The police cars were about one quarter of a mile from where the plaintiff was located. The plaintiff continued to drive and was in the left lane, intending to turn left onto New Britain Avenue. The traffic signal was in the plaintiffs favor. The plaintiff had not made it to the intersection when he noticed that the police cars were now close to him. Upon seeing the lights of the approaching police cars, the plaintiff did not immediately pull over to the right but instead attempted to execute his left turn and was struck on the driver’s side of his car by a stolen car that was being pursued by the police.” The plaintiff argues that segments of this excerpt are not supported by the evidence and, in fact, are contrary to the evidence. We disagree.

The standard of review that governs a trial court’s findings of fact is well established. “Questions of fact are subject to the clearly erroneous standard of review. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . Because it is the trial court’s function to weigh the evidence . . . [the reviewing court] gives great deference to its findings.” (Internal quotation marks omitted.) Reiner, Reiner & Bendett, P.C. v. Cadle Co., 278 Conn. 92, 107, 897 A.2d 58 (2006).

Upon review of the record and after considering the evidence, including reasonable inferences that may be drawn therefrom, we conclude that the court’s findings are supported by facts appearing in the record. The plaintiffs testimony, coupled with the exhibits introduced at trial, including the police report of the accident, provide a factual basis for the court’s findings. We cannot say that these findings are clearly erroneous. Accordingly, this claim fails.

II

The plaintiff next claims that the court misapplied § 14-283 (e) in finding him comparatively negligent. Specifically, he claims that (1) he was not in the “immediate vicinity” of the police vehicles as required by § 14-283 (e) and (2) he was not required to comply with § 14-283 (e) because it was more practical to grant the right-of-way to the police vehicles by turning left. We disagree.

“The interpretation of a statute, as well as its applicability to a given set of facts and circumstances, involves a question of law and our review, therefore, is plenary.” (Internal quotation marks omitted.) Russell v. Russell, 91 Conn. App. 619, 629, 882 A.2d 98, cert. denied, 276 Conn. 924, 925, 888 A.2d 92 (2005).

The plaintiff argues that § 14-283 (e) is inapplicable in the present case because that section requires only vehicles in the “immediate vicinity” of emergency vehicles that are making an immediate approach to comply with its directives. He invites us to conclude that the court’s findings do not permit the inference that he was in the immediate vicinity of the police vehicles. We disagree.

The court found that the plaintiff saw the police vehicles when they were one quarter of a mile behind him. The police vehicles were approaching his position with their lights flashing. Although there is no finding regarding the distance between the police vehicles and the plaintiffs vehicle at the moment the accident occurred, the court’s findings support the conclusion that the plaintiff was within the immediate vicinity of the police vehicles. Accordingly, he was required to comply with the provisions of § 14-283 (e).

The plaintiff next argues that he did not violate § 14-283 (e) because the obligation to drive to the right to grant the right-of-way to an emergency vehicle is not absolute when it may be more practical to grant the right-of-way by turning left. See Fasanelli v. Terzo, 150 Conn. 349, 189 A.2d 500 (1963); see also State v. Cordova, 38 Conn. Sup. 377, 383, 448 A.2d 848 (1982) (Hennessy, J.) (interpreting Fasanelli). The plaintiffs argument is premised on a factual finding that it was more practical to grant the right-of-way by turning left. The court, however, after hearing the evidence and having the opportunity to view the witnesses, made no such finding. The court, in fact, implicitly rejected the plaintiffs argument that it was more practical to grant the right-of-way by turning left by finding that he violated § 14-283 (e). As an appellate court, we cannot retry the facts or pass on the credibility of the witnesses. Palmieri v. Girino, 90 Conn. App. 841, 846, 880 A.2d 172, cert. denied, 276 Conn. 927, 889 A.2d 817 (2005). Accordingly, we cannot say that the court’s finding was clearly erroneous. See Reiner, Reiner & Bendett, P. C. v. Cadle Co., supra, 278 Conn. 107.

Ill

The plaintiffs final claim is that the court improperly found him to be 25 percent comparatively negligent. Specifically, the plaintiff claims that “[t]here was no legal basis for the court to have found that [he] was in any way responsible for this accident, as his conduct was not the proximate cause of the accident.” We disagree.

“The question of proximate cause generally belongs to the trier of fact because causation is essentially a factual issue. ... It becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion; if there is room for a reasonable disagreement the question is one to be determined by the trier as a matter of fact.” (Citations omitted; internal quotation marks omitted.) Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 611, 662 A.2d 753 (1995). Accordingly, we will reverse the judgment of the court only if proximate cause is absent as a matter of law.

In the present case, the court could have concluded that the plaintiffs conduct was a proximate cause of the accident and, therefore, that he was 25 percent comparatively negligent. The evidence showed that the plaintiff saw the approaching police vehicles prior to attempting to turn left. Rather than stop his vehicle or move to the right side of the road, he continued to turn left and was struck by Homar’s vehicle. This evidence provided a basis for the court to conclude that the plaintiffs behavior was a substantial factor is bringing about his injuries. See DeOliveira v. PMG Land Associates, L.P., 105 Conn. App. 369, 377-78, 939 A.2d 2 (2008). Accordingly, we cannot say that the court’s finding of 25 percent comparative negligence was clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court issued its memorandum of decision on September 26, 2006. On November 6,2006, the court issued a corrected memorandum of decision. All references to the court’s memorandum of decision refer to the November 6, 2006 corrected memorandum of decision.

       General Statutes § 14-283 (e) provides: “Upon the immediate approach of an emergency vehicle making use of such an audible warning signal device and such visible flashing or revolving lights or of any state or local police vehicle properly and lawfully making use of an audible warning signal device only, the operator of every other vehicle in the immediate vicinity shall immediately drive to a position parallel to, and as close as possible to, the right-hand edge or curb of the roadway clear of any intersection and shall stop and remain in such position until the emergency vehicle has passed, except when otherwise directed by a state or local police officer or firefighter.”

       The court did not make a finding that the police were using an audible warning device as required by § 14-283 (e). See Fasanelli v. Terzo, 150 Conn. 349, 357, 189 A.2d 500 (1963) (finding provisions of § 14-283 not triggered by use of emergency lights without use of audible warning device). Whether the court was required to make such a finding prior to finding a violation of § 14-283 has not been raised as an issue on appeal.


text:
    LUCIANO SPROVIERO ET AL. v. J.M. SCOTT ASSOCIATES, INC.
    (AC 28135)
    Gruendel, Lavine and Pellegrino, Js.

      Argued March 10
    officially released June 17, 2008

      Bruce L. Elstein, for the appellant (defendant).

      James Ryan Mulvey, with whom was David F. Bennett, for the appellees (plaintiffs).
   Opinion

PELLEGRINO, J.

The present case arises from alease dispute between the tenant plaintiffs, Luciano Sproviero and Anthony Bernardo, and the landlord defendant, J.M. Scott Associates, Inc. The defendant appeals from the judgment of the trial court, rendered after a trial to the court, in favor of the plaintiffs. The defendant claims that the court improperly concluded that the plaintiffs (1) were not liable for costs incurred by the defendant in repairing and maintaining the property’s septic system, (2) were not hable in nuisance and (3) did not breach the lease. We affirm the judgment of the trial court.

The facts and procedural history of this case have turned an ordinary lease dispute into a tangled web of litigation. We delve into this matter by first setting forth the facts as found by the court in its memorandum of decision. The parties entered into a twenty year lease, commencing September 1, 1979, for 1440 square feet of commercial property to be used by the plaintiffs for operating a Laundromat and dry cleaning business. The rent was payable monthly at the rate of $360 and was to remain unchanged throughout the term of the lease, except to account for increases in insurance and taxes. The plaintiffs had an option to renew the lease for an additional twenty years, at a mutually agreed on rental rate, by notifying the defendant in writing two years prior to the expiration of the original lease.

Attached to and made part of the lease was a document dated August 1, 1979, entitled “Conditions to Lease.” The conditions provided, among other things, that “[t]he septic tank and system is to be maintained by the lessee, and the septic tank is to be cleaned out not less than twice a year by him and once a year by Mr. Ed of Ed’s Beauty Salon next door.” Mr. Ed never cleaned the septic tank and ceased being a tenant around 1990.

The parties entered into a supplemental agreement dated July 10, 1986. By this agreement, the defendant granted the plaintiffs the right to expand the septic system in exchange for their promise to maintain the entire system and perform all routine maintenance. “Routine maintenance” is not defined in the agreement. The agreement, however, does provide that the plaintiffs “shall not be responsible for any damages or problems caused by the increased use or misuse of said septic system by other tenants . . . .” The plaintiffs spent $40,000 of their money to expand the septic system and thereafter maintained it in compliance with their lease obligations through December 13, 1999.

On August 18, 1997, the plaintiffs timely notified the defendant of their intent to exercise their option to renew the lease and asked that the parties meet to agree on a new rental rate. The defendant contacted the plaintiff by letter dated December 23, 1998, and acknowledged the plaintiffs’ desire to renew the lease, but stated that the plaintiffs must agree to certain additional terms before it would agree to renew the lease. The plaintiffs did not agree to those terms. On June 23, 1999, the defendant sent another letter to the plaintiffs, stating that it was willing to enter into a new lease. This letter contained six conditions that the defendant required the plaintiffs to agree to before it would enter into a new lease. None of the conditions was in the original lease or the renewal clause of the original lease. The letter also stated that the rate for the new lease would be $5 per square foot plus taxes, insurance and maintenance. The plaintiffs again did not agree to any of the new conditions set forth by the defendant. On August 31, 1999, the lease expired.

Around September 1, 1999, Bernardo was contacted by telephone by the defendant and informed that the new rent would be $583 per month plus taxes, insurance and maintenance, for a total monthly rate of $806. The plaintiffs paid this monthly rate from September, 1999, through July, 2002.

By letter dated July 12, 2002, the defendant notified the plaintiffs of an increase in their total monthly rent. The letter stated that their present monthly rent was $583 plus taxes, insurance and maintenance. Increases for cost of living, insurance, taxes and maintenance raised the total monthly rent to $940. From July 12, 2002, the plaintiffs have continued to pay $940 monthly.

The facts of this case resulted in two separate legal actions. The first was a summary process action (summary process action) begun by the defendant on December 13,1999, when it served a notice to quit possession on the plaintiffs, demanding that the plaintiffs vacate the premises by December 31, 1999. The notice stated that any payments tendered after December 31, 1999, would be accepted for use and occupancy only and not for rent. The defendant thereafter filed a three count summary process complaint, with a return date of May 31, 2000. An answer to the complaint was not filed until February 12, 2003.

Meanwhile, the plaintiffs filed their complaint (plaintiffs’ action), with a return date of March 7, 2000, alleging that (1) the defendant’s failure to renew the lease was a breach of contract and (2) the defendant breached the lease by permitting other tenants to use the septic system. On November 10, 2004, the defendant amended its answer to set forth a two count counterclaim. The counterclaim sought legal and equitable relief for (1) the plaintiffs’ breach of lease by their failure to maintain the septic system and (2) damage caused by the septic system’s failure.

The court found that the facts supporting the defendant’s counterclaim arose between August, 1999, and November, 2004. Specifically, water began surfacing at some point in 2000. The plaintiffs fixed this problem, which was caused by a toilet that was left running when another tenant of the defendant vacated the premises. In 2003, another breakout occurred, and the plaintiffs called their engineer, Dudley Ashwood, who had designed the 1986 addition to the septic system. Ash-wood inspected the septic system on February 6, March 5 and April 16, 2003, and observed no active leaching system failure. He did find that the plaintiffs substantially reduced their water usage between 1997 and 2002. The plaintiffs resisted making any substantial repairs to the septic system during this period because the defendant was trying to evict them.

In January, 2004, counsel for the defendant notified the plaintiffs that they had failed to maintain the septic system, that the system was failing and that breakouts were occurring. On April 12, 2004, the Pomperaug district department of health (department) cited the defendant for the sewage overflow that was occurring at its property. The department did not cite the plaintiffs. Between 2004 and 2006, the defendant spent $125,000 in pumping the septic tanks to prevent breakouts. The cost of replacing the entire septic system would have been approximately $30,000.

The summary process action and the plaintiffs’ action were consolidated for trial and, subsequently, tried to the court on August 30, 2006. In the summary process action, the court found in favor of the plaintiffs on all counts, concluding that the lease was renewed and that they were not breaching its provisions. Neither party appealed from that judgment, and, accordingly, it is not part of this appeal.

In the plaintiffs’ action, the court likewise found that the lease was renewed. The court found that the defendant’s actions in contacting the plaintiffs and informing them of a rent increase was a proposal for a new rent, as contemplated by the option to renew, which the plaintiffs accepted by paying. The parties, therefore, had an enforceable twenty year lease, commencing September 1, 1999, under the same terms as the original lease except for the rent. The court concluded that the defendant’s failure to recognize the renewed lease was a breach of contract. Accordingly, the court rendered judgment for the plaintiffs as to their breach of contract claim.

In the breach of lease claim, the court found that the proof presented at trial did not establish by a preponderance of the evidence that the defendant breached the lease by permitting other tenants to use the septic system. The court accordingly rendered judgment in favor of the defendant as to that claim.

Turning to the defendant’s counterclaim, the court found that the defendant had not sustained its burden of proof on either count. Specifically, the court found that the evidence did not show that the plaintiffs failed to maintain the septic system in accordance with the lease. Moreover, the court found that other parties were responsible for the septic system’s failure and that other parties failed to maintain the septic system. The plaintiffs, therefore, were not hable for damages caused by the system’s failure. Accordingly, the court rendered judgment in favor of the plaintiffs on the defendant’s counterclaim.

The defendant has appealed from the court’s judgment on its counterclaim. It is helpful at the outset, however, to note what is not at issue in this appeal. There is no challenge to any aspect of the court’s ruling pertaining to the summary process action. Similarly, there is no challenge to the court’s finding that the plaintiffs exercised their option to renew the lease. The defendant, in fact, concedes that the parties have a valid twenty year lease that commenced September 1, 1999, under the same terms as the original lease except for the rent. Accordingly, we need not review any of these issues. We now address the defendant’s claims.

I

The defendant’s first claim is that the court improperly concluded that the plaintiffs were not hable for costs it incurred in repairing and maintaining the septic system. The defendant argues that under the terms of the lease, which the court found to be renewed, the maintenance of the septic system was the plaintiffs’ responsibility, and, accordingly, they must reimburse the defendant for the costs it incurred in pumping the septic system between 2004 and 2005. We disagree.

The defendant’s claim is for damages, which we generally review under the abuse of discretion standard. When, however, a damages award is challenged on the basis of a question of law, our review is plenary. Motherway v. Geary, 82 Conn. App. 722, 726, 846 A.2d 909 (2004).

A

The defendant’s first argument is that the lease was in effect during the pendency of this action. We find, however, that the lease was not in effect while this litigation was pending.

Our law makes clear that after a notice to quit possession has been served, a tenant’s fixed tenancy is converted into a tenancy at sufferance. Housing Authority v. Hird, 13 Conn. App. 150, 155, 535 A.2d 377, cert. denied, 209 Conn. 825, 552 A.2d 433 (1988). A tenant at sufferance is released from his obligations under a lease. Feneck v. Nowakowski, 146 Conn. 434, 436, 151 A.2d 891 (1959); Welk v. Bidwell, 136 Conn. 603, 609, 73 A.2d 295 (1950) (tenant at sufferance has no duty to pay rent). His only obligations are to pay the reasonable rental value of the property which he occupied in the form of use and occupancy payments; Welk v. Bidwell, supra, 609; and to fulfill all statutory obligations. Housing Authority v. Hird, supra, 157 (“[t]he statutory obligations of the landlord and tenant continue even when there is no longer a rental agreement between them”).

In the present case, the defendant served the plaintiffs with notice to quit possession on December 13, 1999. Upon service of the notice to quit possession, the plaintiffs’ fixed tenancy was converted to a tenancy at sufferance, and the plaintiffs temporarily were relieved of their obligation to maintain the septic system. Accordingly, the lease was not in effect during the pendency of this litigation, and the defendant is not entitled to reimbursement of costs it incurred in maintaining the septic system.

B

The defendant also argues that because the plaintiffs prevailed in the summary process action, their lease obligations were revived retroactively when their tenancy at sufferance was converted back to a leasehold estate. We disagree.

This court previously has stated that an original lease can be “revived,” “restored” and returned to its original “status quo” by a judgment rendered in favor of a tenant in a summary process action. Housing Authority v. Hird, supra, 13 Conn. App. 157. In such an instance, a tenant’s judgment “effectively erase[s] the court slate clean as though the eviction predicated on the . . . notice to quit possession had never been commenced. The plaintiff and the defendant [are] back to square one, and the continuation of their [original lease is] restored.” (Internal quotation marks omitted.) Id.

The defendant reads the quoted language from Hird as holding that lease obligations that were extinguished during the tenancy at sufferance are revived retroactively to the date the notice to quit was served if the landlord loses the summary process action. The defendant argues that if the parties go back to square one as if the notice to quit possession had never been served, the plaintiffs would have been obligated to maintain the septic system and, therefore, would have incurred the costs that the defendant incurred in maintaining it. Accordingly, the defendant claims that it is entitled to reimbursement for the cost of maintaining the septic system while the plaintiffs were tenants at sufferance. We do not agree.

Although the Hird court stated that the parties go back to square one as if the summary process action had never been commenced, Hird does not stand for the proposition that a lease can be revived retroactively. The language the defendant cites ignores the court’s use of phrases such as “[the tenant’s judgment] ‘revived’ the original lease arrangement”; id., 155; and “continuation of their lease . . . was restored.” Id., 157. Such phrases connote the prospective application of a lease’s provisions, rather than indicating retroactive revival.

Furthermore, retroactive revival is unnecessary in light of a tenant at sufferance’s obligation to make use and occupancy payments during his tenancy. Use and occupancy payments encompass a fair rental value of the property, which necessarily accounts for obligations that are assumed by a landlord in renting the property, such as septic system maintenance. See Walk v. Bidwell, supra, 136 Conn. 609. Although, in many instances, use and occupancy payments are equal to the parties’ previously agreed upon rent, a landlord may be entitled to a larger use and occupancy payment when it is forced to assume obligations that were once the responsibility of a tenant under alease. See, e.g., Young v. Vlahos, 103 Conn. App. 470, 481, 929 A.2d 362 (2007) (finding tenant at sufferance liable for sewer and water charges incurred during the tenancy at sufferance), cert. denied, 285 Conn. 913, 943 A.2d 474 (2008). A revived lease, therefore, does not need to apply retroactively because the landlord is compensated for assuming a tenant’s obligations through use and occupancy payments.

In the present case, the plaintiffs paid $806 in monthly rent for September, October, November and December, 1999. On December 13, 1999, the defendant served the plaintiffs with the notice to quit possession. The notice stated that any payments tendered by the plaintiffs after December 31,1999, would be accepted as use and occupancy payments only and not as rent. Accordingly, payments made by the plaintiffs beginning January, 2000, were contemplated by the defendant as being use and occupancy payments and not rent. The plaintiffs thereafter continued to pay $806 per month as use and occupancy payments as directed by the defendant.

On July 12, 2002, the defendant notified the plaintiffs that their “rent” was increasing to $940 per month. Although the defendant characterizes this as a “rent” increase, it is better designated as an increase in the use and occupancy payments because, as the defendant recognized in its notice to quit possession, the plaintiffs were not obligated to pay rent during their tenancy at sufferance. The plaintiffs acquiesced to this increase, thereby avoiding the need for a judicial determination of the fair rental value of the property. See General Statutes § 47a-26b. The defendant, therefore, received an agreed upon compensation for the plaintiffs’ use and occupancy of the premises during their tenancy at sufferance.

If the defendant believed $940 per month did not represent the fair rental value of the property, it could have sought an increase in the plaintiffs’ use and occupancy payment. The plaintiffs, in fact, agreed without complaint to the first increase to $940 per month. The defendant, however, is not entitled to reimbursement for the costs it incurred in maintaining the septic system during the plaintiffs’ tenancy at sufferance, as the plaintiffs fulfilled their financial obligations by making the requested use and occupancy payments. Accordingly, the defendant’s claim fails.

II

The defendant next claims that the court improperly concluded that the plaintiffs were not liable for nuisance. Specifically, the defendant claims that the court failed to find that the plaintiffs had a statutory obligation under General Statutes § 47a-ll to prevent sewage breakouts during their tenancy at sufferance, which they failed to do, and are now liable for the costs the defendant incurred in pumping the septic system to prevent such breakouts. We disagree.

“Although the existence of a nuisance generally is a question of fact, for which we invoke a clearly erroneous standard of review . . . where the court makes legal conclusions or we are presented with questions of mixed law and fact, we employ a plenaiy standard of review . . . .” (Citation omitted.) Kinsale v. Tombari, 95 Conn. App. 472, 479, 897 A.2d 646 (2006).

Although we agree with the defendant that the plaintiffs statutorily were obligated not to conduct themselves in such a manner as to constitute a nuisance; see Rivera v. Santiago, 4 Conn. App. 608, 610, 495 A.2d 1122 (1985); we cannot say that the court’s findings of fact show that the plaintiffs behaved in such a manner or that any of these findings are clearly erroneous in light of the evidence presented at trial. The record supports the court’s finding that the plaintiffs were not at fault for the sewage breakouts. At least two other tenants ran pipes from their buildings into the septic tanks and other tenants failed to pump the septic system as required. In addition, there is no evidence showing that the breakouts were caused by the plaintiffs. In fact, the evidence showed that the breakouts first began in 2000 and that the plaintiffs substantially reduced their water usage between 1997 and 2002. Moreover, the defendant has not shown how the plaintiffs, as tenants at sufferance, were obligated to prevent breakouts from occurring when the defendant was responsible for maintaining the septic system. See part I.

On the basis of the evidence presented at trial, we cannot say that the court’s findings are clearly erroneous. Similarly, we cannot say that these findings evidence a violation of any statute. Accordingly, the defendant’s claim fails.

Ill

The defendant’s next claim is that the court improperly found that the plaintiffs did not breach their lease. Specifically, the defendant claims that the court improperly found that (1) the lease obligated parties other than the plaintiffs to maintain the septic system, (2) the sewage breakouts were caused, in part, by other parties and (3) the plaintiffs maintained the septic system as required by the lease. We disagree.

It is helpful at the outset to clarify the scope of the defendant’s claim. The defendant’s claim arises from the lease and, therefore, concerns only the time period when the lease was in effect. As discussed in part I, the lease was ineffectual during the plaintiffs’ tenancy at sufferance, and, accordingly, the plaintiffs had no leasehold obligations until the lease was revived. Because the defendant’s claim is based on acts that occurred while the plaintiffs were still obligated under the lease, it is limited to the lease period from September 1, 1979, through December 13, 1999.

We now set forth the applicable standard of review. The defendant’s claim presents a question of contract interpretation because “alease is a contract, and, therefore, it is subject to the same rules of construction as other contracts. . . . The standard of review for the interpretation of a contract is well established. Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [when] there is definitive contract language, the determination of what the parties intended by their . . . commitments is a question of law [over which our review is plenary].” (Citation omitted, internal quotation marks omitted.) Bristol v. Ocean State Job Lot Stores of Connecticut, Inc., 284 Conn. 1, 7, 931 A.2d 837 (2007).

“Whether there was a breach of contract is ordinarily a question of fact. ... We review the court’s findings of fact under the clearly erroneous standard. . . . The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed . . . .” (Internal quotation marks omitted.) Czaplicki v. Ogren, 87 Conn. App. 779, 785, 868 A.2d 61 (2005).

The first portion of the defendant’s claim is that the court improperly interpreted the lease to find that other parties were obligated to maintain the septic system. We disagree. The relevant conditions to the original lease provided that “[t]he septic tank and system is to be maintained by the lessee, and the septic tank is to be cleaned out not less than twice a year by him and once a year by Mr. Ed of Ed’s Beauty Salon next door.” The parties altered this clause by mutual agreement in 1986. Under the supplemental agreement, the plaintiffs agreed “to maintain the entire system in good repair at [their] own expense and to perform all routine maintenance as may be suggested by the engineer . . . .” The agreement further provided that the plaintiffs “shall not be responsible for any damages or problems caused by the increased use or misuse of said septic system by other tenants; and, in the event that such increased use or misuse shall be caused by other tenants, then such tenant or tenants will be responsible for the same.” On the basis of this definitive language, we conclude, as did the trial court, that other parties were obligated to maintain the septic system. Specifically, prior to the supplemental agreement, the plaintiffs were required to perform two of the three septic tank cleanings each year. After the supplemental agreement, other parties were obligated to maintain the septic system if another tenant increased his use or misused the septic system.

Next, the defendant claims that the court improperly found that other parties were at fault for the sewage breakouts. On the basis of the evidence, we cannot say that the court’s finding is clearly erroneous. The evidence showed that at least two other tenants ran pipes to the septic tank and that other parties discharged into the septic system. This evidence supports the court’s finding that other parties were at fault for the sewage breakouts.

Finally, the defendant claims that the court’s finding that the plaintiffs were not in breach of their lease by failing to maintain the septic system was clearly erroneous. We disagree. Evidence showed that the plaintiffs had the septic system pumped regularly and that no breakouts occurred while the plaintiffs were obligated to maintain it. Breakouts occurred only while the plaintiffs were tenants at sufferance. The fact that no breakouts occurred during the plaintiffs’ leasehold supports the court’s finding that they had not breached the lease. Accordingly, we cannot say that the court’s finding that the plaintiffs did not breach the lease was clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       The propriety of the cost of living and other rent increases were not challenged at trial.

       “Summary process is a special statutory procedure designed to provide an expeditious remedy. ... It enable[s] landlords to obtain possession of leased premises without suffering the delay, loss and expense to which, under the common-law actions, they might be subjected by tenants wrongfully holding over their terms. . . . Summary process statutes secure a prompt hearing and final determination.” (Citations omitted; internal quotation marks omitted.) Young v. Young, 249 Conn. 482, 487, 733 A.2d 835 (1999).
      “[Summary process] is preceded by giving the statutorily required notice to quit possession to the tenant. . . . Service of a notice to quit possession is typically a landlord’s unequivocal act notifying the tenant of the termination of the lease. The lease is neither voided nor rescinded until the landlord performs this act and, upon service of a notice to quit possession, a [leasehold] is converted to a tenancy at sufferance.” Housing Authority v. Hird, 13 Conn. App. 150, 155, 535 A.2d 377, cert. denied, 209 Conn. 825, 552 A.2d 433 (1988).
      The defendant’s notice to quit possession gave four reasons for the eviction: (1) lapse of time; (2) by reason of expressed stipulation in the rental agreement or lease; (3) violation of the rental agreement or lease; and (4) nuisance as defined in General Statutes § 47a-32.

       Although summary process is designed to secure a prompt hearing; see footnote 2; no reason was given for the lengthy delay in this case. The court made reference to this fact, stating that it “is not unmindful of the fact that the word ‘summary’ may not exactly describe the path or speed of this process.”

       The defendant raises two claims that require little discussion. First, it claims that the court improperly found that it was required to repair the septic system. The court,, however, made no such finding. In its memorandum of decision, the court questioned why the defendant chose to pump the septic system repeatedly at a total cost of $125,000, when repairing the system would cost only $30,000. Because there is no finding that the defendant was required to repair the system, the defendant’s claim fails.
      Next, the defendant claims that the court improperly concluded that the defendant had a duty to mitigate damages. The court made no such ruling. The duty to mitigate damages arises only when a party is entitled to an award of damages. See, e.g., Ann Howard’s Apricots Restaurant, Inc. v. Commission on Human Rights & Opportunities, 237 Conn. 209, 229, 676 A.2d 844 (1996) (“in the contracts and torts contexts . . . the party receiving a damage award has a duty to make reasonable efforts to mitigate damages”). The court ruled in favor of the plaintiffs on the defendant’s counterclaim, thereby ruling that the defendant was not entitled to an award of damages. The court accordingly made no finding that the defendant had a duty to mitigate damages, and this claim fails.

       The defendant does not claim that the plaintiffs failed to make use and occupancy payments.

       This issue typically does not arise because of the speed in which a summary process action is decided. See footnote 2. In the present case, the summary process action began in December, 1999, and was decided in September, 2006.

       The defendant also asserts an alternative theory for concluding that the court improperly failed to find the plaintiffs liable. He claims that the plaintiffs were holdover tenants at will and, therefore, were obligated to maintain the septic system under the terms of the original lease. This claim has no merit and can summarily be disposed of. Upon the service of the December 13,1999 notice to quit possession, the plaintiffs became tenants at sufferance. See Housing Authority v. Hird, supra, 13 Conn. App. 155. Accordingly, the plaintiffs were not tenants at will.

       General Statutes § 47a-ll provides in relevant part: “A tenant shall: (a) Comply with all obligations primarily imposed upon tenants by applicable provisions of any building, housing or fire code materially affecting health and safety ...(g) conduct himself and require other persons on the premises with his consent to conduct themselves in a manner that will not disturb his neighbors’ peaceful erijoyment of the premises or constitute a nuisance, as defined in section 47a-32, or a serious nuisance, as defined in section 47a-15
      General Statutes § 47a-32 defines nuisance as including, but not limited to, “any conduct which interferes substantially with the comfort or safety of other tenants or occupants of the same or adjacent buildings or structures.”
      General Statutes § 47a-15 defines serious nuisance, in relevant part, as “substantial and wilful destruction of part of the dwelling unit or premises [or] conduct which presents an immediate and serious danger to the safety of other tenants or the landlord . . . .”