author: LAVERY, J.

text:
    STATE OF CONNECTICUT v. RAYMOND SERRANO
    (AC 29443)
    Lavine, Beach and Lavery, Js.

      Argued January 8
    officially released September 7, 2010

      Roy S. Ward, special public defender, for the appellant (defendant).

      John A. East III, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Patrick J. Griffin, senior assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, J.

The defendant, Raymond Serrano, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (1). On appeal, the defendant claims that (1) the trial court violated his sixth amendment right of confrontation by admitting several hearsay statements into evidence and (2) there was insufficient evidence to prove beyond a reasonable doubt that he attacked and intended to cause serious physical injury to the victim. We disagree and, accordingly, affirm the judgment of the court.

The jury reasonably could have found the following facts. On the evening of August 2, 2005, in the city of Waterbury, the defendant and David Seekins, the victim, were arguing in a yard shared by several homes. Shortly before 10:30 p.m., the defendant brandished a blunt object. Donna Franco, the defendant’s roommate, also was standing in the yard. She implored the defendant not to strike the victim. At least two of the defendant’s neighbors, Jonathan Mendez and Daniel Medina, overheard Franco’s pleas. Mendez heard Franco say either, “don’t do it,” or, “don’t hit it,” while Medina heard Franco say, “stop hitting him, you don’t have to do that, don’t hit him, you’re going to kill him.”

At some point thereafter, the defendant struck the victim on the head with the blunt object at least three times. Two of the defendant’s neighbors, Mendez and Juana Ramirez, along with Jorge Reyes, a guest of Ramirez, saw the defendant attack the victim.

Law enforcement and emergency medical personnel arrived on the scene shortly thereafter and rushed the victim to a hospital. Upon the victim’s arrival at the hospital, members of the trauma service observed that the victim had sustained several facial injuries.

Sun Yung Waitze, a plastic and reconstructive surgeon, first examined the victim approximately two days after he was admitted to the hospital. Waitze noted that the left side of the victim’s head “had the most deformity” and asked the victim how he had been injured. The victim responded that he had been struck on the head with an unidentified blunt object. After completing his examination, Waitze concluded that the victim’s injuries were serious enough to require surgery. Consequently, less than two weeks after the examination, Waitze performed surgery on the victim.

On the basis of the information provided by Waitze and the other witnesses, the defendant was arrested, tried before a jury and convicted of assault in the first degree. On June 1, 2007, the defendant was sentenced to an effective prison term of ten years, with a five year mandatory minimum to serve, execution suspended after seven years, and five years probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly admitted into evidence a series of testimonial hearsay statements in violation of his rights under the confrontation clause of the sixth amendment. Specifically, he contends that the court improperly admitted into evidence: (1) Franco’s statements immediately before the victim was attacked, as relayed through the testimony of the defendant’s neighbors, Mendez and Medina; (2) the victim’s statement to Waitze regarding the cause of his injuries; and (3) Medina’s testimony that he heard an unknown person call out the name “Raymond” approximately one minute after the attack, despite the court’s curative instruction ordering the jury to disregard that portion of Medina’s testimony and striking the word “Raymond” from the record. We disagree.

We first set forth relevant principles of law and our standard of review. “Under Crawford v. Washington, [541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)], the hearsay statements of an unavailable witness that are testimonial in nature may be admitted under the sixth amendment’s confrontation clause only if the defendant has had a prior opportunity to cross-examine the declarant. Hearsay statements that are nontestimonial in nature are not governed by the confrontation clause, and their admissibility is governed solely by the rules of evidence. . . . Thus, the threshold inquiry for purposes of the admissibility of such statements under the confrontation clause is whether they are testimonial in nature. Because this determination is a question of law, our review is plenary.” (Citation omitted.) State v. Slater, 285 Conn. 162, 169-70, 939 A.2d 1105, cert. denied, 553 U.S. 1085, 128 S. Ct. 2885, 171 L. Ed. 2d 822 (2008).

“Although . . . there is no comprehensive definition of testimonial, it is clear that much of the [United States] Supreme Court’s and our own jurisprudence applying Crawford largely has focused on the reasonable expectation of the declarant that, under the circumstances, his or her words later could be used for prosecutorial purposes.” (Internal quotation marks omitted.) Id., 172. With these principles in mind, we turn to the defendant’s arguments.

A

The defendant claims that the court committed reversible error by allowing into evidence testimony from the defendant’s neighbors regarding several witness statements relating what Franco allegedly said immediately before the victim was attacked. Specifically, the defendant claims that these statements are testimonial in nature and, therefore, inadmissible under the rule announced in Crawford v. Washington, supra, 541 U.S. 36. We disagree.

The following additional facts and procedural history are relevant to our resolution of this issue. Before trial, defense counsel filed a motion in limine to preclude the introduction of hearsay evidence. During pretrial argument on the motion, defense counsel contended that the testimony of the state’s witnesses would likely include inadmissible hearsay statements. The court determined that it needed to hear the disputed evidence before issuing a ruling and requested that the issue be raised again during the presentation of the evidence. Despite the delay, the court never ruled on the motion in limine.

The state placed Franco under subpoena, yet she failed to testify at trial. Both Mendez and Medina testified that Franco made several statements immediately before the victim was attacked. Mendez testified that he heard Franco say either, “don’t do it,” or, “don’t hit it,” immediately before he saw the defendant strike the victim. Defense counsel did not object to Mendez’ testimony during direct examination by the prosecution but did object during redirect on the ground that it was inadmissible as hearsay. The court overruled defense counsel’s objection noting that Franco’s statement, as relayed by Mendez, already had been introduced into evidence during direct examination.

Medina, who did not see the defendant strike the victim, testified that he heard Franco say, “stop hitting him, you don’t have to do that, don’t hit him, you’re going to kill him,” immediately before he heard the sounds of a physical altercation. Defense counsel objected to Medina’s testimony during direct examination by the prosecution on the ground that it was inadmissible as hearsay. The court again overruled defense counsel’s objection.

The circumstances of this case, viewed objectively, would not have led Franco reasonably to believe that her statements later could be used for prosecutorial purposes. See State v. Slater, supra, 285 Conn. 177. Franco made the disputed statements without any degree of solemnity or reflection immediately before the defendant attacked the victim. Therefore, Franco reasonably could not have expected that she was bearing witness against the defendant when she implored him not to attack the victim. Because her statements were nontestimonial in nature, the confrontation clause of the sixth amendment was not implicated. See Davis v. Washington, 547 U.S. 813, 823-24, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).

Accordingly, we next turn to our rules of evidence to determine whether the court properly admitted the testimony regarding Franco’s nontestimonial statements. See State v. Slater, supra, 285 Conn. 178. Because Franco’s statements were nontestimonial and this is not an issue of constitutional magnitude, we review the court’s admission of Franco’s statements, as relayed through the testimony of Mendez and Medina, under the abuse of discretion standard. See State v. Saucier, 283 Conn. 207, 219, 926 A.2d 633 (2007). “Whether an utterance is spontaneous and made under circumstances that would preclude contrivance and misrepresentation is a preliminary question of fact to be decided by the trial judge. . . . The trial court has broad discretion in making that factual determination, which will not be disturbed on appeal absent an unreasonable exercise of discretion.” (Citation omitted; internal quotation marks omitted.) State v. Kelly, 256 Conn. 23, 42, 770 A.2d 908 (2001).

Section 8-3 (2) of the Connecticut Code of Evidence provides that a spontaneous utterance is “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” A hearsay statement is admissible as a spontaneous utterance when “(1) the declaration follows a startling occurrence, (2) the declaration refers to that occurrence, (3) the declarant observed the occurrence, and (4) the declaration is made under circumstances that negate the opportunity for deliberation and fabrication by the declarant.” State v. Kelly, supra, 256 Conn. 41-42; see also State v. Slater, supra, 285 Conn. 179.

Here, all four requirements were satisfied. The defendant was preparing to attack the victim, and Franco’s statements clearly referred to that frightening occurrence. The testimony of Mendez; Medina; and two other neighbors, Ramon Serrano, the defendant’s father, and Ramirez; as well as Reyes, a guest of Ramirez, placed Franco at the scene of the attack. Mendez and Medina testified that Franco sounded loud and agitated when she implored the defendant not to strike the victim. Moreover, they testified that Franco made the disputed statements immediately before the defendant attacked the victim. Therefore, Franco’s emotional state indicates that her statements were made under circumstances that negated an opportunity for deliberation or fabrication. See State v. Slater, supra, 285 Conn. 179-80 (circumstances surrounding victim’s statement to passersby immediately after sexual assault would not lead victim reasonably to believe statement would be used at trial). For these reasons, we conclude that the court did not abuse its discretion in admitting Franco’s statements through the testimony of Mendez and Medina.

Even if we were to conclude that the admission of Franco’s statements through the testimony of Mendez or Medina was improper, the defendant still could not prevail. The jury was presented with ample evidence of the defendant’s guilt, including the testimony of three eyewitnesses who saw the defendant strike the victim with a blunt object. See State v. Thomas, 98 Conn. App. 384, 388, 909 A.2d 57 (2006) (concluding defendant could not prevail in light of ample evidence of guilt even if court abused discretion in admitting statement as spontaneous utterance), cert. denied, 281 Conn. 906, 916 A.2d 47 (2007).

B

The defendant next claims that the court improperly admitted into evidence Waitze’s testimony regarding the victim’s statement to him concerning the instrument that caused the victim’s injuries. We reject this claim.

The following additional facts and procedural history are relevant to our resolution of this issue. The victim did not testify at trial. Waitze testified that he treated the victim approximately two days after the victim was admitted to the hospital. Furthermore, Waitze testified that, as a surgeon, it was important for him to understand what caused the victim’s injuries in order to provide the victim with effective medical treatment. The victim told Waitze that he had been beaten with a blunt object, although he was not sure of the exact nature of the object. Defense counsel objected to Waitze’s testimony on the ground that it was inadmissible as hearsay. The court overruled defense counsel's objection and admitted the victim’s statement under the medical treatment exception to the hearsay rule.

We first must determine whether the victim’s statement to Waitze was testimonial in nature. The circumstances of this case, viewed objectively, would not have led the victim reasonably to believe that his statement to his treating physician would be used later for prosecutorial purposes. Rather, the nature of the victim’s statement, and the context in which it was elicited, make it clear that the victim reasonably expected that he was providing Waitze with information that would enable Waitze to provide the victim with proper medical treatment. See State v. Slater, supra, 285 Conn. 183-86. The victim’s statement to Waitze did not identify the assailant or reveal any detail of the crime unrelated to medical treatment. Accordingly, we conclude that the victim’s statement to Waitze was nontestimonial in nature.

Therefore, we must turn to our rules of evidence to determine whether the court properly admitted the victim’s statement to Waitze. Because this is not an issue of constitutional magnitude, we review pursuant to the abuse of discretion standard the court’s determination that the victim’s statement was admissible under the medical treatment exception to the hearsay rule. See State v. Arroyo, 284 Conn. 597, 635 n.23, 935 A.2d 975 (2007).

Section 8-3 (5) of the Connecticut Code of Evidence provides an exception to the hearsay rule for “[a] statement made for purposes of obtaining a medical diagnosis or treatment 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 diagnosis or treatment.” As we previously have stated, the victim’s statement to Waitze was related to his injuries and the general character of their cause. Therefore, we conclude that the court did not abuse its discretion in admitting the victim’s statement to Waitze under the medical treatment exception to the hearsay rule.

C

Finally, the defendant claims that the court’s curative instruction ordering the jury to disregard Medina’s testimony that he heard someone say the name “Raymond,” as well as the court’s order that the name “Raymond” be stricken from the record, was deficient. We disagree.

The following facts and procedural history are relevant to our resolution of this issue. At trial, Medina testified that he overheard an unknown person call out the name “Raymond” approximately one minute after he heard the sounds of a physical altercation. Defense counsel objected to Medina’s testimony on the ground that it was inadmissible as hearsay. Initially, the court overruled defense counsel’s objection. The court, however, later reversed itself and issued a curative instruction, ordering the jury to disregard Medina’s testimony that he heard someone call out the name “Raymond.” The court also ordered that the name “Raymond” be stricken from the record.

It is well settled that “[ajbsent evidence to the contrary, a jury is presumed to have followed the court’s instructions.” State v. Banks, 117 Conn. App. 102, 119, 978 A.2d 519, cert. denied, 294 Conn. 905, 982 A.2d 1081 (2009). The defendant has presented no information to rebut that presumption. We conclude, therefore, that the court’s curative instruction was followed.

II

The defendant’s final claim is that the evidence adduced at trial was insufficient to support his conviction. Specifically, the defendant claims that the evidence was insufficient to support a reasonable finding by the jury that he (1) was the assailant or (2) intended to cause serious physical injury to the victim. We disagree.

We begin by setting forth our standard of review. “In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Bowens, 118 Conn. App. 112, 118-19, 982 A.2d 1089 (2009), cert. denied, 295 Conn. 902, 988 A.2d 878 (2010).

“Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable. . . . [T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Garcia, 81 Conn. App. 294, 305, 838 A.2d 1064 (2004).

We note that “it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Internal quotation marks omitted.) State v. Bowens, supra, 118 Conn. App. 119. With these principles in mind, we again turn to the defendant’s arguments.

A

The defendant claims that the state presented insufficient evidence to prove that he attacked the victim. He cites a number of alleged inconsistencies and contradictions in the testimony of the witnesses at trial in support of his claim. We are not persuaded.

“[A]s an appellate court, we do not act as a finder of fact capable of rendering judgment on the basis of some feeling of doubt of guilt perceived from the printed record. Instead, we must defer to the finder of fact’s evaluation of the credibility of the witnesses that is based on its invaluable firsthand observation of their conduct, demeanor and attitude. . . . [The fact finder] is free to juxtapose conflicting versions of events and determine which is more credible. ... It is the [fact finder’s] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses. . . . The [fact finder] can . . . decide what—all, none, or some—of a witness’ testimony to accept or reject.” (Citation omitted; internal quotation marks omitted.) State v. Colon, 117 Conn. App. 150, 154, 978 A.2d 99 (2009).

From the evidence presented at trial and the reasonable inferences that could have been drawn therefrom, we conclude that the state produced ample evidence to prove that the defendant was the assailant. Three eyewitnesses, Mendez, Ramirez, and Reyes, testified that they saw the defendant strike the victim. The defendant attacks the credibility of these witnesses on the ground that their testimony was rife with inconsistencies and contradictions. Yet, it is the exclusive province of the jury, not this court, to weigh conflicting evidence and to assess the credibility of these witnesses. See id.

The other eyewitness, the defendant’s father, testified that the defendant was at the scene but that the victim already had been injured. The jury was free to juxtapose his version of events, however, with those of the other witnesses and to discount his credibility as it deemed fit. See id. We conclude, on the basis of the cumulative effect of the evidence, that the state produced ample evidence from which a rational jury could have determined that the defendant was the assailant.

B

The defendant further claims that the state presented insufficient evidence to prove that he acted with the requisite intent in causing the victim’s injuries. Specifically, he claims that no reasonable jury could have found that he intended to cause serious physical injury to the victim. We are not persuaded.

Section 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person . . . .” Thus, “[a]ssault in the first degree is a specific intent crime. It requires that the criminal actor possess the specific intent to cause serious physical injury to another person.” (Internal quotation marks omitted.) State v. Sivak, 84 Conn. App. 105, 110, 852 A.2d 812, cert. denied, 271 Conn. 916, 859 A.2d 573 (2004).

“Intent is a question of fact, the determination of which should stand unless the conclusion drawn by the trier is an unreasonable one. . . . [T]he [jury is] not bound to accept as true the defendant’s claim of lack of intent or his explanation of why he lacked intent. . . . Intent may be, and usually is, inferred from the defendant’s verbal or physical conduct. . . . Intent may also be inferred from the surrounding circumstances. . . . The use of inferences based on circumstantial evidence is necessary because direct evidence of the accused’s state of mind is rarely available. . . . Intent may be gleaned from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading up to and immediately following the incident. . . . Furthermore, it is a permissible, albeit not a necessary or mandatory, inference that a defendant intended the natural consequences of his voluntary conduct.” (Citations omitted; internal quotation marks omitted.) State v. Andrews, 114 Conn. App. 738, 744-45, 971 A.2d 63, cert. denied, 293 Conn. 901, 975 A.2d 1277 (2009).

In light of the evidence presented at trial and the reasonable inferences that could have been drawn therefrom, we conclude that the state produced sufficient evidence from which the jury reasonably could have found that the defendant intended to cause serious physical injury to the victim. The jury reasonably could have found that the defendant and the victim initially engaged in a heated verbal argument. Moreover, the jury reasonably could have found that the defendant, armed with a blunt object, then struck the victim on the head with that object at least three times. The jury also reasonably could have found that the victim sustained several serious injuries, including various skull fractures. Therefore, on the basis of the cumulative effect of all of the evidence, the jury reasonably could have found that the defendant intended to cause serious physical injury to the victim by repeatedly striking him on the head with a blunt object.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant’s motion in limine was generalized. It stated: “Pursuant to § 42-15 of the Connecticut Practice Book, the [defendant respectfully requests that this [c]ourt rule, prior to the [s]tate’s witnesses testifying, including but not limited to lay witnesses, police officers and expert witnesses, about inadmissible hearsay statements. In support of this motion, the defendant states that the statements of the [s]tate’s witnesses are wrought with inadmissible hearsay statements. To allow the state’s witnesses to testify about these statements would result in a prejudicial impact upon the defendant’s case. No previous similar motion has been filed.”

       Apparently, Franco was in the courthouse at some point during the first day of trial. When she failed to appear the following morning, the court asked the prosecutor to search the courthouse for her. The prosecutor, however, was unable to locate her.

       In light of the discussion between the court, the prosecutor and defense counsel prior to the introduction of witness testimony, as well as the circumstances surrounding defense counsel’s objection at trial, we conclude that the defendant adequately preserved this issue for appeal.

       The court issued the following curative instruction to the jury: “Ladies and gentlemen, the witness has testified . . . that a minute or so after certain things transpired, to which he’s also testified, he heard the word Raymond. . . . I’m ordering that that testimony, which is one word, Raymond, be . . . stricken and that you disregard it.”


source: Caselaw Access Project

license: Public Domain

text:
    RICHARD A. HOGBERG ET AL. v. DEPARTMENT OF SOCIAL SERVICES
    (AC 30720)
    Lavine, Beach and Lavery, Js.

      Argued January 8
    officially released September 7, 2010

      Barry C. Knott, with whom was Kathleen M. Dunn, for the appellants (plaintiffs).

      Darren P. Cunningham, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Opinion

LAVERY, J.

The plaintiffs, Lynda K. Hogberg and Richard A. Hogberg, appeal from the judgment of the trial court rendered in favor of the defendant, the department of social services (department). The dispositive issue on appeal is whether, pursuant to the department’s Uniform Policy Manual, the defendant properly determined that the medical conditions of Richard Hogberg did not constitute exceptional circumstances resulting in significant financial duress that would have warranted an increase in his minimum monthly needs allowance (allowance) under the medicaid program. See Department of Social Services, Uniform Policy Manual § 1570.25 (D) (3) (Uniform Policy Manual). We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of the plaintiffs’ appeal. Lynda Hogberg, the institutionalized spouse, has been residing at Milford Health Care Center since approximately September 1, 2004. On September 22, 2006, Richard Hogberg, the community spouse, filed an application, on behalf of his wife, with the department for medicaid benefits. In an “Assessment of Spousal Assets, Notification of Results” issued on March 2,2007, the department concluded that Lynda Hogberg was not currently eligible for medicaid assistance. Specifically, the department found that the total value of the plaintiffs’ assets at the time of institutionalization was $817,406.71. The department found that Lynda Hogberg’s share of the spousal assets was $718,866.71, and Richard Hogberg’s share of the assets was $99,540. Consequently, because the maximum amount of the plaintiffs’ retained assets exceeded the total of $101,140—the community spouse resource allowance of $99,540 plus $1600, the limit for an institutionalized spouse’s countable assets —the department determined that Lynda Hogberg was ineligible for medicaid assistance.

On April 23, 2007, the plaintiffs requested an administrative hearing to contest the denial of the title XIX medicaid application of Lynda Hogberg and the assessment of spousal income and assets. At the hearing held on May 17, 2007, the plaintiffs argued that Richard Hogberg suffered from four significant medical conditions—the removal and replacement with a plastic unit of a valve in his heart, thyroid removal, hiatal hernia and glaucoma—that constitute exceptional circumstances. According to the plaintiffs, these conditions require him to expend an extraordinary amount of money each month on prescription medications, medical insurance premiums, housekeeping and on yard work and snow removal expenses that are necessary to maintain his independence at home. Consequently, the plaintiffs claimed that Richard Hogberg’s exceptional circumstances result in monthly expenses that exceed his income by a significant amount—hence, circumstances that are demonstrative of his significant financial duress.

As a final argument, the plaintiffs contended that if Richard Hogberg were denied the opportunity to pay for his prescriptions, he would be at an increased risk for hospitalization or the need for long-term care. Thus, they argued that his exceptional circumstances threatened his ability to remain in the community.

In a decision dated July 18, 2007, the hearing officer found the following facts. At the date of the hearing, the plaintiffs’ remaining funds totaled $167,569.79, and Richard Hogberg was seventy-one years old. On the basis of four reports from Richard Hogberg’s treating physicians that were submitted as evidence, the hearing officer found that Richard Hogberg suffers from diabetes, hypertension, a hiatal hernia, glaucoma, hyperlipidemia and hypothyroidism. Moreover, his aortic valve has been replaced. Richard Hogberg takes the following medications due to his conditions: Synthroid, folic acid, Nexium, simvastatin, Travatan, Toprol, Diovan HCT and warfarin. Richard Hogberg is no longer able to do yard work, and his performing snow removal is not encouraged. In addition to yard work and snow removal services, he also pays for housekeeping services. The hearing officer found that if Richard Hogberg failed to take his medications, he would be at an increased risk of hospitalization or long-term care. She also found that he “suffers from the normal frailties of old age and [that] his circumstances are not exceptional for a seventy-one year old individual.”

After reciting the applicable regulations and the foregoing factual findings, the hearing officer denied the appeal, determining that Richard Hogberg did not qualify for a diversion of income from Lynda Hogberg’s assets in order to provide him with a higher monthly income than his allowance. The hearing officer specifically concluded that there was “no evidence that [Richard Hogberg’s] circumstances prevent him from taking care of his activities of daily living. I consider [him] to suffer from [the] normal frailties of an older individual and not to be exceptional. I do not consider the need for increased costs relating to medical insurance and prescription medications to be an exceptional expense.” The hearing officer concluded that because Lynda Hogberg’s assets exceeded the title XIX asset limit of $1600, she was ineligible for medicaid assistance. The plaintiffs requested reconsideration of the hearing officer’s decision on August 1,2007. The request was denied on August 13, 2007.

Pursuant to General Statutes § 4-183, the plaintiffs timely filed an administrative appeal with the court. The court determined that the record supported the finding that Richard Hogberg did not demonstrate exceptional circumstances resulting in significant financial duress because his specific medical conditions were not severe and unusual, which are requirements under Uniform Policy Manual § 1570.25 (D) (3) (a). Additionally, the court also flatly rejected the plaintiffs’ claim that Richard Hogberg’s living situation falls under the purview of the “exceptional circumstances” provision because he suffers from significant medical conditions that require expenditures for prescriptions, medical insurance premiums, housekeeping and yard work and snow removal services at his home. In its memorandum of decision, the court noted that the “exceptional circumstances” provision was not intended to insure community spouses against indebtedness. Instead, the purpose of the provision is to provide additional income for those community spouses suffering from extraordinary or unusual circumstances that make it financially stressful to continue living independently in the community. On the basis of the Uniform Policy Manual, the court disagreed with the plaintiffs’ contention that exceptional circumstances mean any circumstances that generate expenses not provided for in the allowance. Rather, given the language and legislative history of 42 U.S.C. § 1396r-5 (e) (2) (B), the court stated that an increase in the allowance should be made available to alleviate a true financial hardship that is thrust upon the community spouse by extraordinary circumstances and is beyond the community spouse’s control. This appeal followed.

The plaintiffs claim that the court failed to consider the reliable and substantial evidence in the record in concluding that Richard Hogberg’s health did not constitute an exceptional circumstance. The plaintiffs argue that the medical documentation submitted at the hearing supports their claim that Richard Hogberg has a need for additional assets and a need for higher monthly income than is permitted by the allowance calculation. Specifically, they argue that this need is “due to his exceptional circumstances including, but not limited to his extensive and extraordinary medical conditions, costs of necessary medication, and other costs necessitated by his physical restrictions, all of which constitute exceptional circumstances resulting in significant financial duress to him because they directly threaten his ability to remain in the community.”

Conversely, the department argues, inter alia, that because the hearing officer found that Richard Hogberg suffered from the “ ‘normal frailties of old age’ ” and that his circumstances were “ ‘not exceptional for a seventy-one year old individual’,” the hearing officer, as a consequence, also found that his conditions were “neither ‘unusual’ nor ‘severe’ ”—two required elements of “exceptional circumstances” under Uniform Policy Manual § 1570.25 (D). Because there is substantial evidence in the record to support this finding, the department argues that the judgment should be affirmed.

We begin our analysis by setting forth the appropriate standard of review. “[JJudicial review of the [department’s] action is governed by the Uniform Administrative Procedure Act [(UAPA), General Statutes §§ 4-166 through 4-189], and the scope of that review is very restricted.” (Internal quotation marks omitted.) Jim’s Auto Body v. Commissioner of Motor Vehicles, 285 Conn. 794, 803, 942 A.2d 305 (2008). “[R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact. . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion.” (Citations omitted.) Dolgner v. Alander, 237 Conn. 272, 280, 676 A.2d 865 (1996).

“The substantial evidence rule governs judicial review of administrative fact-finding under the UAPA. General Statutes § 4-183 (j) (5) and (6). An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . The substantial evidence rule imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . .” (Citations omitted; internal quotation marks omitted.) Id., 281. “It is fundamental that a plaintiff has the burden of proving that the [department], on the facts before [it], acted contrary to law and in abuse of [its] discretion .... The law is also well established that if the decision of the [department] is reasonably supported by the evidence it must be sustained.” (Internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343-44, 757 A.2d 561 (2000).

After a thorough review of the record, we cannot conclude that the department abused its discretion and, therefore, affirm the judgment of the court. Under Uniform Policy Manual § 1570.25 (D) (3) (a), one of the prerequisites for circumstances to be found “exceptional” is that they are both “severe and unusual.” The hearing officer specifically concluded that Richard Hogberg was suffering from the “normal frailties of an older individual” and that his “circumstances are not exceptional for a seventy-one year old” man. If the medical conditions from which the community spouse suffers are not severe and unusual, “exceptional circumstances” do not exist, and the department must deny the community spouse’s request to increase the allowance.

Furthermore, it is also clear that the court correctly applied the Uniform Policy Manual standards to the plaintiffs’ claim concerning the effects of Richard Hog-berg’s ailments on his daily life and on his ability to remain in the community. While the hearing officer found that Richard Hogberg incurred several expenses and hardships resulting from his ailments, what is more important is that not all of the expenses incurred as a result of his ailments were beyond his control, and several were factored into the allowance formula. Although the plaintiffs also argue that if Richard Hog-berg failed to take his medications, he would be at an increased risk of hospitalization or long-term care, there was no finding that Richard Hogberg was unable to take his medications or was at an immediate risk of being unable to take his medications. In light of the foregoing, the court’s denial of the plaintiffs’ appeal is appropriate and supported by evidence in the administrative record.

The judgment is affirmed.

In this opinion the other judges concurred.

       “An institutionalized spouse is a spouse who resides in a medical facility or long term care facility, or who receives home and community based services (CBS) under a Medicaid waiver, and who is legally married to someone who does not reside in such facilities or who does not receive such services.” Uniform Policy Manual, § 4000.01; see also 42 U.S.C. § 1396r-5 (h) (1).

       “A community spouse is an individual who resides in the community, who does not receive home and community based services under a Medicaid waiver, who is married to an individual who resides in a medical facility or long term care facility or who receives home and community based services (CBS) under a Medicaid waiver.” Uniform Policy Manual, § 4000.01; see also 42 U.S.C. § 1396r-5 (h) (2).

       The community spouse resource allowance is defined as “the amount of the total available non-excluded assets owned by both [Medicare Catastrophic Coverage Act] spouses which is protected for the community spouse and is not counted in determining the institutionalized spouse’s eligibility for medicaid.” Uniform Policy Manual, § 1500.01.

       See Uniform Policy Manual, § 4005.10.

       “Title XIX of the Social Security Act, 42 U.S.C. §§ 1396-1396s, commonly known as the Medicaid Act, is a federal-state cooperative program designed to provide medical assistance to persons whose income and resources are insufficient to meet the costs of medical care.” (Internal quotation marks omitted.) Sikand v. Wilson-Coker, 276 Conn. 618, 620, 888 A.2d 74 (2006). “General Statutes § 17b-2 (8) designates the department as the state agency responsible for administering the state’s medicaid program,” Id., 621.

       In addition to the community spouse resource allowance, a community spouse is entitled to an allowance. Uniform Policy Manual, § 5035.30 (B) (1). “If the community spouse’s income from outside sources is insufficient to meet his [allowance], the institutionalized spouse is permitted to bridge this deficit by transferring income to the community spouse. . . . Because this increase in the resource allowance results from a transfer of resources from the institutionalized spouse to the community spouse, the value of the institutionalized spouse’s resources is brought closer to the [medicaid] eligibility level.” (Citations omitted.) Burinskas v. Dept. of Social Services, 240 Conn. 141, 149-50, 691 A.2d 586 (1993).
      A community spouse may obtain an increase in the allowance by requesting a hearing from the department. Section 1570.25 (D) (3) of the Uniform Policy Manual, which delineates the nonadministrative duties of a fair hearing official, provides in relevant part: “The [fair hearing] official increases the community spouse’s [minimum monthly needs allowance] previously determined by the Department if either . . . spouse establishes that the community spouse has exceptional circumstances resulting in significant financial duress, and the [allowance] previously calculated by the Department is not sufficient to meet the community spouse’s monthly needs as determined by the hearing official.” (Emphasis added.)
      Section 1570.25 (D) of the Uniform Policy Manual defines exceptional circumstances as “those that are severe and unusual and that: (1) prevent the community spouse from taking care of his or her activities of daily living; or (2) directly threaten the community spouse’s ability to remain in the community; or (3) involve the community spouse’s providing constant and essential care for his or her disabled child, sibling or other immediate relative (other than institutionalized spouse).”

       In September, 2004, the plaintiffs gifted $187,000 to their children. The penalty period associated with this gift had long since expired prior to the filing of the medicaid application.

       There was no finding, however, that Richard Hogberg was unable to take his medications or was at an immediate risk of being unable to take his medications.

       The Uniform Policy Manual provides that “[significant financial duress is an expense or set of expenses that ... (2) is not already factored into the [allowance]; and (3) cannot reasonably be expected to be met by the community spouse’s own income and assets.” Uniform Policy Manual, § 1570.25 (D) (3) (b). The “[ejxpenses that are factored into the [allowance] . . . include, but are not limited to: (1) shelter costs such as rent or mortgage payments; (2) utility costs ... (5) real estate, life and medical insurance; (6) expenses for the upkeep of a home such as lawn maintenance, snow removal, replacement of a roof, furnace or appliance; (7) medical expenses reflecting the normal frailties of old age.” Uniform Policy Manual, § 1570.25 (D) (3) (c).

       See footnote 6 of this opinion.

       As the court noted, the “exceptional circumstances” provision was not designed to prevent against indebtedness, but only to ensure that the community spouse could remain in the community. By eliminating or reducing some of his expenses that are within his control, Richard Hogberg could remain in the community without an increase in the allowance.

       See footnote 6 of this opinion.


author: MIHALAKOS, J.

text:
    RALPH E. DAVIES ET AL. v. SCOTT JEZEK
    (AC 30107)
    DiPentima, C. J., and Harper and Mihalakos, Js.
    Argued April 12
    officially released September 7, 2010

      Thomas P. Willcutts, for the appellant (named plaintiff).

      Robert W. Cassot, with whom was Cristin E. Sheehan, for the appellee (defendant).
   Opinion

MIHALAKOS, J.

The plaintiff Ralph E. Davies appeals from the judgment of the trial court rendered after the court denied his motion to set aside the verdict in favor of the defendant, attorney Scott Jezek, following a jury trial. On appeal, the plaintiff claims that the court improperly (1) failed to set aside the verdict because it (a) permitted the defendant’s counsel to make a missing witness argument and (b) improperly instructed the jury on assumption of risk, and (2) failed to grant the plaintiff a new trial. We affirm the judgment of the trial court.

The court found the following facts. The underlying legal malpractice action against the defendant arose from a May 10, 2002 real estate closing. In that transaction, the defendant represented the plaintiff and his wife, Lamen Davies, who sought to purchase property known as 3 Norwich Road in East Haddam, on which a three-story house is located. The adjacent property, 5 Norwich Road, was believed to include a large building that housed a package store. Both properties were owned by William F. D’Aquila, Jr.

Prior to the defendant’s involvement in the real estate transaction, the plaintiff and his wife (the Davies) negotiated the financial terms of the purchase directly with D’Aquila. On March 12, 2002, the Davies signed a purchase contract for $282,000 for 3 Norwich Road, with a closing date of April 25, 2002. A few days prior to the closing date, after the defendant had been retained by the Davies, his paralegal alerted him that there was a potential boundary issue between the adjoining properties. The defendant contacted the Davies, who at that point were driving to Connecticut from their home in Florida. During that telephone call, the defendant suggested that the Davies should postpone the closing until they could conduct a survey to establish the exact boundary. The Davies represented to the defendant that they desired to proceed without a survey because, based on conversations with Gary Amara, who intended to purchase 5 Norwich Road, they were satisfied that any property encroachment, which was estimated to be between six inches and one foot, could be dealt with after the closing. The defendant testified that during that conversation, the Davies told him that the boundary line was located on the west side of the package store and that it might be a deviation of, in the “worst case, maybe an inch.”

Thereafter, D’Aquila entered into a contract to sell 5 Norwich Road, the adjacent property, to Gary Amara and Arla Amara. He planned to close on the sales of both properties on the same date. Because the defendant remained concerned about a potential boundary dispute, he advised the Davies to sign a boundary dispute agreement, which they did. On May 10, 2002, D’Aquila executed a warranty deed transferring 3 Norwich Road to the Davies for $282,000, and the plaintiff signed an application for homeowner’s insurance to insure the home on the property. On that same date, D’Aquila also executed a warranty deed transferring to the Amaras 5 Norwich Road, which included the transfer of a lease to the package store owner, Michael A. Billings, for use of the building.

The Amaras had the properties surveyed and learned that the actual boundary was on the eastern edge of the package store, placing the entire building on 3 Norwich Road. Subsequently, the plaintiff claimed that it had always been his intention to open a coffee shop in the space occupied by the package store and sought to evict Billings from the property. The defendant testified that the plaintiff had never stated that he intended to purchase the package store to open a coffee shop or for any other reason. The defendant also notified the plaintiff that, because he previously had represented Billings in the preparation of the package store lease, he could not represent the plaintiff in any claims against Billings. The defendant referred the plaintiff to other counsel.

The plaintiff obtained the legal services of two other law firms, one of which brought his summary process action to evict Billlings and another which brought an action to quiet title in the property dispute. Those cases eventually were settled. Consequently, the plaintiff sought to recoup those attorney’s fees by bringing an action against the defendant for legal malpractice. The plaintiff claimed that the defendant (1) allowed, instructed and counseled the Davies to close on the property with full knowledge of the boundary dispute, (2) instructed and counseled the Davies to sign the boundary dispute agreement without the benefit and protection of an accurate survey, (3) failed to disclose to the Davies that he had previously represented D’Aquilla with regard to a lease, (4) failed to insist that the closing be postponed until the boundary dispute had been resolved with a survey and (5) failed to include in the boundary dispute agreement a mechanism for dispute resolution.

A jury trial on the plaintiffs legal malpractice claim concluded on December 7, 2007. The jury found that the defendant had not committed legal malpractice in his representation of the plaintiff. On December 17, 2007, the plaintiff filed a motion to set aside the verdict. The court conducted an evidentiary hearing on March 31 and April 4, 2008. On June 26, 2008, the court, Jones, J., issued a memorandum of decision denying the plaintiffs motion and rendering judgment in favor of the defendant. The plaintiff, thereafter, sought an articulation as to the court’s reasoning for the denial of his motion, and the court denied that motion for articulation. This appeal followed. Additional facts and procedural history will be provided as necessary.

I

A

The plaintiff first claims that the verdict should be set aside because the court improperly permitted the defendant, during his closing argument, to present a missing witness argument as to Lauren Davies’ failure to testify at trial, pursuant to General Statutes § 52-216c. We disagree.

“When a verdict should be set aside because of improper remarks of counsel . . . the remedy is a new trial. . . . Our standard of review for such a claim is whether the court abused its discretion when it denied the motion. . . . [T]he trial court is invested with a large discretion with regard to the arguments of counsel .... [WJhile its action is subject to review and control, we can interfere only where the discretion was clearly exceeded or abused to the manifest injury of some party. ... In fact, the court must allow [cjounsel ... a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel ....

“The phraseology to describe whether there has been an abuse of discretion in not setting aside a verdict and granting a new trial is somewhat different as between civil and criminal cases. ... In civil cases . . . the harmed party must show manifest injury .... In every case, both criminal and civil, involving improper argument, there are two questions. The first is whether the remarks were improper, and the second is whether, if the remarks were improper, a new trial is necessary.” (Citations omitted; internal quotation marks omitted.) Sturgeon v. Sturgeon, 114 Conn. App. 682, 689-90, 971 A.2d 691, cert. denied, 293 Conn. 903, 975 A.2d 1278 (2009).

The plaintiff and Lauren Davies are residents of California. On November 2, 2007, the defendant filed a motion for a continuance of the trial, which had been scheduled to begin on November 6, 2007, because he had been informed that the plaintiff suffered from cancer and was unwilling or unable to travel to Connecticut for trial. The defendant’s counsel asserted that it was not until November 1, 2007, that he was made aware that the plaintiffs medical situation would prevent him from traveling to Connecticut. The plaintiff requested that he be allowed to testify via video link. Lauren Davies also requested to testify by video link so that she could stay with the plaintiff during the course of his chemotherapy treatment. The plaintiffs doctor wrote a letter stating that the plaintiff should not travel for a period of six months due to his chemotherapy treatment. The defendant argued that, because Lauren Davies was the party plaintiff most familiar with the events leading to the closing, she should be required to testify in person.

On November 2, 2007, the court, Aurigemma, J., denied the defendant’s motion for a continuance and ruled that Lauren Davies would be required to testify in person. According to the court, based on the plaintiffs doctor’s letter, the plaintiff knew about his cancer prior to August, 2007, and could have moved for a continuance at that time. Further, while the plaintiffs health situation justified his testimony via video link, there was no such justification for allowing Lauren Davies to testify via video link. The court ruled that she would either have to testify in person or not at all. Thereafter, Lauren Davies instructed her attorney to withdraw her claims against the defendant so that she would not have to leave her husband during his cancer treatments. The court ruled, over the plaintiffs objection, that Lauren Davies was available to testify, and, therefore, the defendant could argue during closing argument to the jury regarding her absence at trial. During his closing argument, the defendant brought specific attention to the fact that Lauren Davies had extensive and unique knowledge of the transaction but did not testify.

General Statutes § 52-216c provides: “No court in the trial of a civil action may instruct the jury that an inference unfavorable to any party’s cause may be drawn from the failure of any party to call a witness at such trial. However, counsel for any party to the action shall be entitled to argue to the trier of fact during closing arguments, except where prohibited by section 52-174, that the jury should draw an adverse inference from another party’s failure to call a witness who has been proven to be available to testify.”

Abundant evidence was adduced to establish that Lauren Davies was available to travel to Connecticut to testify. She (1) lived with the plaintiff, (2) previously traveled to Connecticut to visit properties on behalf of the plaintiff, (3) was not barred from traveling by a medical order or condition and (4) was a plaintiff in the case until the first day of trial and would have been required to testify. Moreover, aside from argument by the plaintiffs attorney, Lamen Davies never presented evidence to the court as to why she could not travel to testify. According to the plaintiff, much of his knowledge of the transaction came from Lamen Davies. As the court noted in its memorandum of decision on the plaintiffs motion to set aside the verdict, “Lamen Davies dealt primarily with [the defendant] about matters leading up to [the transaction], and would have more relevant and material knowledge about the closing transaction . . . .” Because she was an essential witness, it was natural for the jury to expect her to testify so that it could “judge her testimony and assess her credibility in person . . . .” Rather than be forced to testify in person, Lamen Davies chose to withdraw from the case, and the plaintiff chose not to call his wife as a witness. Therefore, the court properly permitted the defendant to present in closing argument that the jury could draw an adverse inference from the plaintiffs decision not to call his wife as a witness.

B

The plaintiff also claims that the court improperly charged the jury on assumption of the risk because the defendant never requested such a charge. The defendant contends that this claim is unpreserved and, hence, unreviewable, because the plaintiff did not take exception to the charge at trial on the ground claimed on appeal. We agree with the defendant and do not reach the merits of the plaintiffs claims.

Prior to the court’s charge, the plaintiff objected to the assumption of risk charge because presenting such a charge “would be like a doctor explaining that there’s a risk of surgery, and then the client [who decided] to have the surgery being somehow [found] negligent.” The charge was read to the jury, and the plaintiff offered no further objections on the issue. At no point did the plaintiff object to the charge on the ground that the defendant never requested such a charge in writing.

After trial, the plaintiff filed a motion for articulation, requesting that the court clarify its charge on assumption of risk “in light of the defendant’s failure to submit a request to charge in compliance with Practice Book § 16-21.” On January 5,2009, the court denied the plaintiffs motion for articulation. The plaintiff subsequently filed a motion for rectification. On September 8, 2009, in response to the plaintiffs motion for rectification, the court affirmed that “the defendant did not submit a written request to charge on the doctrine of assumption of risk.” On appeal, the plaintiff claims that the court should not have given a charge on assumption of risk because the defendant never submitted a written request to charge.

As our state Supreme Court has stated, “[t]he time has long since passed when a party can sit silent at the close of a charge and, if the verdict proves unpalatable, thereafter for the first time raise claims of error based on obvious inadvertencies in the charge.” Donner v. Kearse, 234 Conn. 660, 680, 662 A.2d 1269 (1995).

The plaintiff had ample opportunity the challenge the court’s charge on the ground that the defendant failed to comply with Practice Book § 16-21. Rather, the plaintiff chose to object only to the substance of the charge. We conclude, therefore, that the plaintiff failed to preserve this claim by taking exception to the instruction before the jury had entered its verdict, which prevented the court from being able to take appropriate remedial action.

II

The plaintiff next claims that he is entitled to a new trial because new evidence was discovered after the jury’s verdict that is likely to produce a new result. We disagree.

On appeal, “[o]ur standard of review of ... a claim [that the trial court failed to grant a new trial] is the abuse of discretion standard. . . . The function of a court at a hearing for a new trial is to determine whether the evidence presented at the hearing considered with the evidence presented at the original trial warrants the granting of a new trial. That determination is within the sound discretion of the court. ... A petition for a new trial is addressed to the discretion of the trial court and will never be granted except upon substantial grounds. As the discretion which the court is called upon to exercise is not an absolute but a legal one, we will upon appeal set aside its action when it appears that there was a misconception on its part as to the limits of its power, that there was error in the proceedings preliminary to the exercise of its discretion, or that there was a clear abuse in its exercise of its discretion. . . .

“As set forth by our Supreme Court in Asherman v. State, 202 Conn. 429, 434, 521 A.2d 578 (1987), a court is justified in granting a petition for a new trial when it is satisfied that the evidence offered in support thereof: (1) is newly discovered such that it could not have been discovered previously despite the exercise of due diligence; (2) would be material to the issues on a new trial; (3) is not cumulative; and (4) is likely to produce a different result in the event of a new trial. ... To entitle a party to a new trial for newly-discovered evidence, it is indispensable that he should have been diligent in his efforts fully to prepare his cause for trial; and if the new evidence relied upon could have been known with reasonable diligence, a new trial will not be granted.” (Citations omitted; internal quotation marks omitted.) LaCroix v. Glens Falls Ins. Co., 107 Conn. App. 332, 334-35, 945 A.2d 489 (2008).

The plaintiff claims that his discovery of a portion of the grantor-grantee index of East Haddam ten days after trial is sufficient to impeach the defendant’s testimony. The relevant portion of that index shows that the Billings’ lease was recorded on October 16, 2001, on “NORWICH RD,” without a numerical designation. According to the plaintiff, that record is inconsistent with the defendant’s testimony that the lease was recorded on the land records as “5 Norwich Road.” The defendant responded to the discrepancy by maintaining that he had testified without any intent to misstate facts and based on his memory that he had recorded the lease. On appeal, the plaintiff claims that the discrepancy shows that the defendant gave testimony that was prejudicially false and misleading, which could be used to impeach the defendant’s testimony.

Although the plaintiff suggests that the discovery of new evidence warrants a new trial, the evidence in question readily was available to the plaintiff well before trial and could have been produced during trial to impeach the testimony of the defendant. We also agree with the court that, given the entirety of evidence that was offered to the jury, presentation of this additional evidence is not likely to produce a different result in the event of a new trial. Therefore, we conclude that the court did not abuse its discretion in denying the motion for a new trial on the ground that the plaintiff has failed to meet his burden of proving that the evidence could not have been discovered before trial with reasonable diligence.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although Ralph Davies’ wife, Lauren Davies, was originally a plaintiff in the underlying case, she withdrew her claims during trial and is not a party to the present appeal. We therefore refer in this opinion to Ralph Davies as the plaintiff.

       A paved driveway is immediately adjacent to the western edge of the package store. According to the defendant’s testimony, he understood that the paved driveway was part of 3 Norwich Road and that the western edge of the package store was the intended boundary line between the two properties.

       The Amaras had already signed the agreement prior to the Davies’ receiving the document. The agreement provided in relevant part: “The Amaras shall, within 90 days of this Agreement, at their cost and expense, have the common boundary line of 5 Norwich Road, East Haddam and 3 Norwich Road, East Haddam surveyed. In the event that such survey shows any encroachments by either party onto the other’s property, the parties agree to adjust their common boundary line to eliminate any such encroachment and to enter into a Boundary Line Agreement to be recorded on the East Haddam Land Records to establish the agreed common boundary.”

       The Amaras were represented by their own counsel during the closing.

       In his closing argument to the jury, the defendant’s counsel stated: “But, there’s one person who is absolutely necessary for an understanding as to what this case was about. One person who could have sat in [front of] that jury box and told you exactly what she was thinking, could have told you exactly why she thought she was buying a package store, could have told you exactly what efforts she undertook to try to sell this house. Because, remember, [the plaintiff] said Lauren handled the transaction when they tried to sell the house. [The plaintiff] said Lauren handled the transaction when they were looking for a house. Lauren Davies did not testify.”

       Practice Book § 16-21 provides: “Any party intending to claim the benefit of the doctrines of supervening negligence, superseding cause, intervening cause, assumption of risk, or the provisions of any specific statute shall file a written request to charge on the legal principle involved.”

       The plaintiff also claims that the court failed to charge the jury on offers of compromise relating to the history and outcome of the underlying dispute. We disagree and conclude, on the basis of the reasoning set forth in the court’s June 26, 2008 memorandum of decision, that the plaintiffs claim is without merit.

       At trial, the following colloquy took place:
      “[The Defendant’s Counsel]: Do you know whether [the lease agreement with Billings] was recorded on the land records?
      “[The Defendant]: The entire lease was recorded on the land records.
      “[The Defendant’s Counsel]: Did you advise the Davies of that prior to their closing?
      “[The Defendant]: No, I did not.
      “[The Defendant’s Counsel]: Why didn’t you [inform the Davies of the Billings’ lease]?
      “[The Defendant]: Because it was on 5 Norwich Road, what I believed to be 5 Norwich Road. The lease had a description which was 5 Norwich Road.”


author: ALVORD, J.

text:
    LUCILLE J. NAPPO v. MERRILL LYNCH CREDIT CORPORATION
    (AC 30494)
    Robinson, Alvord and Dupont, Js.
    Argued May 26
    officially released September 7, 2010

      Richard P. Weinstein, with whom, on the brief, was Nathan A. Schatz, for the appellant (plaintiff).

      Kathleen Morrison Grover, with whom was P. Jo Anne Burgh, for the appellee (defendant).
   Opinion

ALVORD, J.

The plaintiff, Lucille J. Nappo, appeals from the judgment of the trial court upholding the validity of a mortgage on her residential property in Avon held by the defendant, Merrill Lynch Credit Corporation. The plaintiff claims that the mortgage should be discharged because the evidence presented at trial failed to establish that she owed the defendant a debt. We disagree and affirm the judgment of the trial court.

The plaintiff is the sole owner of a house located at 16 Hitchcock Lane in Avon. In April, 1999, she applied to the defendant for a $250,000 home equity credit line, to be secured by a mortgage on her property in Avon. Her application was approved, and on August 23, 1999, she executed an agreement and promissory note establishing the credit line and an open-end mortgage in favor of the defendant. The execution of the mortgage was witnessed by an attorney and by Patricia Nappo, the plaintiffs daughter-in-law. On the same date, the plaintiff requested in writing that the defendant issue checks for the credit line and mail them to her at her house in Avon. She also received and signed a notice of right to cancel and a fair credit billing act disclosure.

By the end of 2000, over $200,000 had been drawn against the credit line by check, and the plaintiffs account was in default. The defendant commenced collection efforts, which included making frequent calls to the plaintiff and sending her letters indicating the account’s default status. In January, 2004, the account balance, then approximately $240,000, still remained unpaid. The plaintiff sent the defendant a letter, stating: “The home at 16 Hitchcock Lane, Avon, has been in my name since 1979. I have received a foreclosure notice, and I would like some time to bring the account current, which I will be able to do probably within the next six months. I am at the end of a divorce action that began almost two years ago. My husband, who had had a good income, was convicted of a crime and was incarcerated for about a year. He had moved out of the house and has not worked in over two years. What assets we had at that time, he spent on his legal fees or were frozen by the government to pay off an [Internal Revenue Service] debt. I expect that after the trial those funds awarded to me will be unfrozen. I also have a condominium in Florida in my name. While the divorce is pending, neither that condo nor the Avon home can be sold, but after the trial, these houses can be sold. ... I would like to have the foreclosure held off until after the judge’s decision is rendered. If I am awarded the Avon home, then I will either bring everything current or will put the house on the market. It is valued at around $400,000 (we do have current appraisals) and there is certainly enough money to pay off the mortgage and any penalties. The Florida home may also be put on the market and that home does not have a mortgage. If I am not awarded the home, the foreclosure can continue and again, there is certainly enough equity to cover any outstanding debt.”

The plaintiffs divorce was finalized in 2004. On January 12, 2005, the plaintiffs son, Jeffrey Nappo, called the defendant and said that the plaintiff “never took a mortgage out” and that her “ex-husband took this loan out in her name.” The defendant advised Jeffrey Nappo that it needed written authorization from the plaintiff to speak with him regarding the plaintiffs account. The next day, the plaintiff called the defendant and claimed that “her ex-husband forged her signature on this loan.”

In February, 2005, the plaintiff submitted an affidavit of forgery to the defendant in which she claimed that her former husband had signed her name to all of the documents associated with the account. Upon reviewing the affidavit and the plaintiffs account, however, the defendant declined to pursue her claim. It concluded that given the age of the loan, the numerous contacts the plaintiff had with the defendant throughout the life of the loan and the lack of a police report or other legal documentation to substantiate the plaintiffs forgery allegations, her claim of forgery was the result of a marital dispute rather than fraudulent activity.

In an amended complaint filed January 17, 2007, the plaintiff alleged that she never borrowed any moneys against the credit line and sought a release of the defendant’s mortgage and an order pursuant to General Statutes § 47-31 quieting title in her name. She claimed that her former husband had forged her signature on all of the documents associated with the account, including all of the checks drawn on the account, and that she did not know of or participate in the advancement of funds. She argued that the mortgage should be released because no funds were ever advanced to her, and, as a result, the mortgage secured no debt. Following a three day trial, the court rendered judgment in favor of the defendant. The court concluded that the plaintiff had executed a valid mortgage and found that she had knowledge of the advancements and allowed them to occur.

On appeal, the plaintiff acknowledges that the mortgage was properly executed but claims that she did not participate in or have knowledge of the advancement of funds by check against the line of credit and argues that the court’s finding to the contrary is clearly erroneous. We disagree.

The plaintiff’s claim presents a question of fact, and “[t]he trial court’s findings [of fact] are binding upon this court unless they are clearly erroneous .... 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.) Cifaldi v. Cifaldi, 118 Conn. App. 325, 330-31, 983 A.2d 293 (2009). “Because it is the trial court’s function to weigh the evidence and determine credibility, we give great deference to its findings. ... In reviewing factual findings, [w]e do not examine the record to determine whether the [court] could have reached a conclusion other than the one reached. . . . Instead, we make every reasonable presumption ... in favor of the trial court’s ruling.” (Internal quotation marks omitted.) Jay v. A & A Ventures, LLC, 118 Conn. App. 506, 511, 984 A.2d 784 (2009).

In this case, overwhelming evidence supports the court’s finding. The plaintiff admitted that she executed the documents necessary to secure the credit line and create the mortgage. She did so in the presence of a licensed attorney and her daughter-in-law, who served as witnesses. The record also reveals that the plaintiff (1) requested that the defendant issue checks on the account and mail them to her, (2) made numerous calls to the defendant to discuss the status of the credit line, to make payments on the account and to apply for payment mitigation, (3) made at least thirty payments on the account, (4) told a representative of the defendant that she obtained the mortgage for her husband, (5) acknowledged her responsibility to repay the debt in the 2004 letter to the defendant and (6) received statements from the defendant every month for over five years, from March, 2000, to July, 2005, which indicated the account balance, recent account activity and the amount due. The record further indicates that the plaintiff never reported the checks lost or stolen, never filed a criminal complaint against her former husband related to the alleged forgery and did not report any problems with the mortgage or credit line until 2005, years after the checks were drawn on the plaintiffs account. Finally, the transcript discloses that the plaintiffs testimony is fraught with contradiction. It is axiomatic that as the sole arbiter of credibility, the trial court is “free to accept or reject, in whole or in part, the testimony offered by either party.” (Internal quotation marks omitted.) Id., 514.

In light of the foregoing, the court’s finding, that the plaintiff knew of the advancements, allowed them to occur and accepted responsibility for the debt, is well supported by the record, and the court’s decision upholding the validity of the mortgage is proper.

The judgment is affirmed.

In this opinion the other judges concurred.

       The notice of right to cancel provides in relevant part: “We have agreed to establish an open-end credit account for you, and you have agreed to give us a security interest in your home as security for the account. . .

       The fair credit billing act disclosure provides in relevant part: “If you think your bill is wrong, or if you need more information about a transaction on your bill, write us on a separate sheet at the address listed on your bill. Write to us as soon as possible. We must hear from you no later than [sixty] days after we sent you the first bill on which the error or problem appeared.”

       The plaintiff was represented by counsel during her divorce, and her divorce attorney corresponded with the defendant regarding the home equity credit line and mortgage on the plaintiffs property in Avon.

         A representative of the defendant testified that it is not uncommon in the mortgage industry for an allegation of forgery to arise when there is a marital dispute.

       The plaintiff raised additional claims under General Statutes §§ 49-8 and 49-13, but the court concluded that both statutes were inapplicable, and the plaintiff does not challenge that conclusion on appeal.

       Despite a judicial admission in her amended complaint that she executed a mortgage in favor of the defendant to secure a home equity credit line, the plaintiff appears to have claimed at trial that the mortgage was never validly executed. She does not reiterate this claim on appeal, and, accordingly, we do not address it.

       The plaintiff has repeatedly asserted that “[t]he defendant conceded that the checks had been forged.” Although the defendant’s attorney acknowledged that the defendant was “not disputing that the signatures on the checks do not appear to be [the plaintiffs],” the record, including the portion of the transcript cited by the plaintiff, does not disclose that the defendant conceded that the checks had been forged. We remind the plaintiffs counsel of his duty of candor to the court.

       During the trial, both parties acknowledged that the debt remained unpaid.

       In response to a request by the plaintiff, the court further articulated that she had “acknowledged the advancements and allowed them to occur contemporaneously with the advancements of the funds.”

       The plaintiff testified that she opened all mail that was addressed to her. The account statements were addressed to the plaintiff and mailed to her at her home in Avon.

       For example, the plaintiff testified that the signature on the credit line application, mortgage and note “appealed] to be” hers and that she was fully competent to sign the documents when she did. She also testified, however, that she did not execute documents related to a mortgage, could not recall applying for the credit line and “had no knowledge of even signing the thing.” Despite executing the documents in the presence of an attorney, the plaintiff testified that she did not think that she was present when the documents were signed, did not know about the checks or that the money was gone and that her signature “was put there somehow.”

       The plaintiff also proposes that the court must have relied on the doctrine of ratification to reach its decision and argues that the court’s reliance on ratification was improper because the defendant did not raise the doctrine at trial. The court, however, never mentioned the doctrine of ratification or stated that it was relying on ratification to reach its conclusion. “Speculation and conjecture have no place in appellate review.” Narumanchi v. DeStefano, 89 Conn. App. 807, 815, 875 A.2d 71 (2005). “[Wjhere the trial court’s decision is ambiguous, unclear or incomplete, an appellant must seek an articulation ... or this court will not review the claim.” (Internal quotation marks omitted.) Testone v. C. R. Gibson Co., 114 Conn. App. 210, 223,969 A.2d 179, cert. denied, 292 Conn. 914,973 A.2d 663 (2009). Although the plaintiff sought articulation on two other points, she did not ask the court if it had applied the doctrine of ratification. We therefore do not review the plaintiffs claim.


text:
    CARMEN LEON v. NATIVIDAD DEJESUS
    (AC 31225)
    DiPentima, C. J., and Harper and Mihalakos, Js.
    Argued April 13
    officially released September 7, 2010

      Anthony E. Feit, for the appellant (plaintiff).

      Heather Q. Wallace, for the appellee (defendant).
   Opinion

MIHALAKOS, J.

The plaintiff, Carmen Leon, appeals from the summary judgment rendered by the trial court in favor of the defendant, Natividad Dejesus, in this negligence action. The plaintiff claims that the court improperly rendered summary judgment after concluding that the defendant owed no legal duty to her. We affirm the judgment of the trial court.

The pleadings, affidavits and other documentary information presented to the court reveal the following undisputed facts. The plaintiff, a home health care aide, filed a complaint and offered subsequent deposition testimony, alleging that on December 14, 2007, at approximately 8 a.m., she was entering the defendant’s building on Stanley Street in East Hartford for her daily nursing visit to an upstairs tenant. The building has a driveway and a walkway that leads to steps that ascend to the front entrance. According to the plaintiff, when she arrived, the driveway and steps were clear, the temperature was going down and rain had started to fall. She entered through the front door and remained inside the premises for approximately two hours. At about 10 a.m., when the plaintiff left the premises, rain was still falling. She stated that there was no salt or sand on the steps outside the front door. As she descended the steps back toward the driveway, she slipped and fell on ice that had formed on the steps, causing her injury.

The defendant was not present on the property at the time of the accident. Sonia Vazquez, who lived with the defendant, stated by affidavit that she and her brother cleared the snow and ice that had fallen the previous night. She also indicated that when she left the property that morning, there was no ice or snow present on the steps, walkway or driveway leading to the building.

On March 23, 2009, the defendant filed a motion for summary judgment, alleging that there existed no triable issue of material fact and that the defendant owed no duty to the plaintiff. The defendant’s motion was granted by the court on June 4, 2009. On appeal, the plaintiff alleges that genuine issues of material fact exist as to whether the defendant failed to clear the steps of snow and ice and also failed to warn the plaintiff, as a business invitee on the premises, of this dangerous condition.

At the outset, we note our standard of review. “Summary judgment is appropriate when 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. . . . Thus, because the court’s decision on a motion for summary judgment is a legal determination, our review on appeal is plenary .... The existence of a duty of care is a prerequisite to a finding of negligence. . . . The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant [breached] that duty in the particular situation at hand. ... If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant. . . .

“Our Supreme Court has stated that the test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant’s position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant’s responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case. . . .

“Our first step in an analysis of whether a duty exists and the extent of the defendant[s’] duty ... is to determine the foreseeability of the plaintiff[s’] injury .... It is a well established tenet of our tort jurisprudence, however, that [d]ue care does not require that one guard against eventualities which at best are too remote to be reasonably foreseeable. ... [A] defendant [is] not required to take precautions against hazards [that are] too remote to be reasonably foreseeable. . . . Due care is always predicated on the existing circumstances.” (Citations omitted; internal quotation marks omitted.) Lachowicz v. Rugens, 119 Conn. App. 866, 868-69, 989 A.2d 651, cert. denied, 297 Conn. 901, 994 A.2d 1287 (2010).

The plaintiff asserts that the court improperly determined that the defendant did not owe her a duty of care because there is an issue of material fact as to whether the storm had ended prior to her fall and whether salt or sand had been applied to the steps.

Our Supreme Court, in Kraus v. Newton, 211 Conn. 191, 197-98, 558 A.2d 240 (1989), stated that “[w]e believe that in the absence of unusual circumstances, a property owner, in fulfilling the duty owed to invitees upon his property to exercise reasonable diligence in removing dangerous accumulations of snow and ice, may await the end of a storm and a reasonable time thereafter before removing ice and snow from outside walks and steps. To require a landlord or other inviter to keep walks and steps clear of dangerous accumulations of ice, sleet or snow or to spread sand or ashes while a storm continues is inexpedient and impractical.”

Having carefully reviewed the pleadings and evidentiary submissions, we agree with the court’s thoughtful and well reasoned findings in its memorandum of decision. We decline to review the plaintiffs claim that her status as a home health care worker constitutes an unusual circumstance relative to the general rule established by our Supreme Court in Kraus v. Newton, supra, 211 Conn. 197-98, because the plaintiff briefed it inadequately. See DuBaldo Electric, LLC v. Montagno Construction, Inc., 119 Conn. App. 423, 444, 988 A.2d 351 (2010). Therefore, because it is undisputed that there was rain at the time of the plaintiffs fall, the defendant was entitled to judgment as a matter of law.

The plaintiffs own testimony established that the temperature was around freezing and that rain was falling both when she arrived on the premises at 8 a.m. and as she left the premises approximately two hours later. She also asserted that prior to her arrival on the premises, the driveway, walkway and steps had been cleared of the snow and ice that had fallen the previous evening. That morning’s precipitation was either a continuation of the previous evening’s storm or the onset of a new storm. Thus, it cannot be disputed that there was a storm ongoing at the time of the plaintiffs injury. Therefore, the court properly concluded that our Supreme Court’s decision in Kraus applies to this case. Our examination of the record persuades us that the court resolved properly the principles of law involved and that its judgment should be affirmed.

The judgment is affirmed.

In this opinion the other judges concurred.


author: PER CURIAM.

text:
    JOYCE SZEKERES ET AL. v. NANCY T. MILLER ET AL.
    (AC 31024)
    Harper, Beach and Hennessy, Js.

      Argued May 18
    officially released September 7, 2010

      Zbigniew S. Rozbicki, for the appellants (plaintiffs).

      Thomas J. Weihing, with whom, on the brief, were Janice L. Rosenfeld and Virginia C. Foreman, for the appellees (defendants).
   Opinion

PER CURIAM.

The plaintiffs, Joyce Szekeres, Stephanie Ann Dridi and Chaker Dridi, appeal from the trial court’s denial of their application for a prejudgment remedy. The plaintiffs filed the application in order to secure a judgment against the defendants, Stephen Szekeres Miller, Denise Miller and Nancy T. Miller. On appeal, the plaintiffs claim that if the court had properly defined probable cause, the court would have granted their prejudgment remedy application. Because we conclude that the record is inadequate for our review, we decline to review this claim and affirm the judgment of the trial court.

The following facts and procedural history are relevant to the plaintiffs’ appeal. On January 15, 2009, the plaintiffs filed a complaint alleging that the defendants were involved in a fraudulent scheme to avoid the payment of an outstanding $255,000 judgment from prior litigation that Stephen Szekeres Miller and Denise Miller owed to the plaintiffs. Specifically, the plaintiffs alleged that on June 5,2008, Stephen Szekeres Miller and Denise Miller transferred certain real property to Nancy Miller with the intent of avoiding or hindering the payment of the judgment. Furthermore, they averred that Nancy Miller was a witness in the prior litigation, that she was aware that Stephen Szekeres Miller and Denise Miller were indebted to the plaintiffs, and that she was privy to the jury’s verdict on June 5, 2008, against Stephen Szekeres Miller and Denise Miller. The plaintiffs alleged that by accepting the fraudulent conveyance of the property, Nancy Miller aided, abetted and conspired with Stephen Szekeres Miller and Denise Miller. The plaintiffs requested that the court set aside the conveyance and award appropriate damages.

In conjunction with their complaint, the plaintiffs also filed an application for a prejudgment remedy on January 15, 2009. They argued that there was probable cause that a judgment in the amount of the prejudgment remedy sought would be rendered in their favor. Thus, in order to secure the judgment, the plaintiffs requested that the court attach the subject property. A hearing on the application was held on April 28, 2009.

After the parties presented their arguments and the court heard testimony from Nancy Miller, the court denied the plaintiffs’ application in an oral ruling. The court determined that the plaintiffs had not met their burden of proof of establishing probable cause that they would prevail on the cause of action alleged. Specifically, the court stated that the “transfer of the property in question was before the verdict was entered. As to whether Nancy Miller could foresee what the verdict was going to be and, therefore, that [future result is what] caused the transfer, that’s speculative. The court can’t find inferences to substantiate or to make that kind of an inference. The inference that’s asked to be drawn is that [Nancy] Miller testified at the trial [in the earlier litigation] and that she knew what the outcome was going to be, and that the transfer to her was to avoid the payments of the judgment—that’s speculative. . . . That’s not a basis for a probable cause determination whereby a prejudgment remedy can be granted.” This appeal followed.

On appeal, the plaintiffs argue that if the court had applied the correct definition of probable cause, in light of factors that are indicative of fraudulent intent, to the undisputed facts, it is clear that the court would have had a “bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it.” (Internal quotation marks omitted.) Crotty v. Tuccio Development, Inc., 119 Conn. App. 775, 779, 990 A.2d 888 (2010). Thus, if the court had applied the correct standard, the plaintiffs contend, the court would have granted the prejudgment remedy application. As a result, the plaintiffs claim that the denial of the application was not only unreasonable but constituted clear error. See id. (review of trial court’s denial of prejudgment remedy application for clear error).

The record reveals that the plaintiffs not only failed to provide this court with a signed transcript of the court’s oral decision but also failed to request an articulation. As the appellants, the plaintiffs bore the burden of providing this court with an adequate record for review of their claim. Dreambuilders Construction, Inc. v. Diamond, 121 Conn. App. 554, 563, 997 A.2d 553 (2010); see also Practice Book § 61-10. “When the record does not contain either a memorandum of decision or a transcribed copy of an oral decision signed by the trial court stating the reasons for its decision, this court frequently has declined to review the claims on appeal because the appellant has failed to provide the court with an adequate record for review. ... If there is an unsigned transcript on file in connection with an appeal, the claims of error raised by the plaintiff may be reviewed if this court determines that the transcript adequately reveals the basis of the trial court’s decision.” (Citation omitted; internal quotation marks omitted.) Solano v. Calegari, 108 Conn. App. 731, 734 n.4, 949 A.2d 1257, cert. denied, 289 Conn. 943, 959 A.2d 1010 (2008).

Furthermore, as we often have observed: “Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the plaintiffs’ claim] would be entirely speculative.” (Internal quotation marks omitted.) Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 608-609, 710 A.2d 190 (1998). “It is well established that [a]n articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification. . . . [P]roper utilization of the motion for articulation serves to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal.” (Internal quotation marks omitted.) Thomas T. Lonardo, P.C. v. Dichello, 121 Conn. App. 528, 533, 996 A.2d 758 (2010). Finally, “we will, in the absence of a motion for articulation, assume that the trial court acted properly.” (Internal quotation marks omitted.) Berglass v. Berglass, 71 Conn. App. 771, 789, 804 A.2d 889 (2002).

We conclude that the plaintiffs’ failure to seek a signed transcript or subsequently to request an articulation pursuant to Practice Book § 66-5 bars our review of their claim. The court’s oral ruling at no time fleshed out the probable cause standard it applied in denying the application, and, consequently, our review of the unsigned transcript can provide no further elucidation. Thus, given this ambiguity, we simply cannot determine whether the court in fact applied an improper standard in denying the application. Moreover, we also note that because the plaintiffs have failed to file a motion for articulation, we assume that the court acted properly. See id.