author: BEAE, J.

text:
    FAITH WHITEHEAD PITE v. WILLIAM J. PITE
    (AC 33421)
    Lavine, Bear and Sheldon, Js.

      Argued April 9 —
    officially released May 29, 2012

      William F. Gallagher, with whom, on the brief, was Hugh D. Hughes, for the appellant (defendant).

      Daniel J. Krisch, with whom were Jean L. Welty and, on the brief, Karen L. Dowd, for the appellee (plaintiff).
   Opinion

BEAE, J.

The defendant, William J. Pite, appeals from the judgment of the trial court granting the motion to modify the duration of periodic alimony filed by the plaintiff, Faith Whitehead Pite, and denying the motion to modify and terminate child support filed by the defendant. On appeal, the defendant claims that the court erred in modifying the time limited periodic alimony and in declining to modify and terminate the defendant’s child support obligation in light of the defendant’s payment of their daughter’s private school tuition. We affirm the judgment of the trial court.

The original dissolution judgment, rendered on February 20, 2001, provided, in relevant part, in paragraph four, that the “defendant shall pay to the plaintiff periodic alimony in the amount of $1500 weekly. Alimony shall terminate upon the death of either party, remarriage or cohabitation by the plaintiff, or the plaintiffs sixtieth birthday, whichever shall occur first. Alimony shall terminate on the plaintiffs sixtieth birthday because the plaintiff will then be able to support herself through the interest awarded to her by this judgment in the defendant’s profit-sharing plan.” Specifically as to the defendant’s profit sharing plan, the judgment also provided, in paragraph ten: “The plaintiff is awarded an interest in the amount of $1,887,736 in the profit-sharing plan held by the defendant. This figure represents one-half of the current value of the profit-sharing plan after deducting the value of the plan at the time of the marriage ($905,371).” On March 22, 2001, the court modified paragraph ten of the judgment, explaining: “[I]t was my intent . . . that [the plaintiff] be awarded one-half of the current value of the profit sharing plan after deducting the value of the plan at the time of the marriage .... I incorrectly used a valuation of that profit sharing plan as of December 22, 2000, and neglected to use the value that was given to me as of January 5, 2001. So, I am going to correct my decision to remedy that error. And given the volatility in the market, and it’s my understanding that the profit sharing plan is primarily stocks and bonds, if not entirely, I believe it appropriate to enter a percentage rather than a fixed dollar amount at this time. So, I am going to award the plaintiff one-half of the current value of the profit sharing plan after deducting the value of the plan at the time of the marriage, which I find to be $905,371

After the defendant filed an appeal from the court’s judgment of dissolution, he and the plaintiff entered into an agreement to modify the dissolution judgment. The stipulated agreement provided, in relevant part, that paragraph ten would be modified as follows: “The [p]laintiff is awarded one-half of the [defendant's interest in his profit-sharing plan, less $575,000. The ‘one-half valuation shall be made by taking the value of the [djefendant’s interest as of the date this modification is approved, and subtracting therefrom the value of the defendant’s interest in the plan at the time of the marriage, which was $905,371. After that one-half figure is determined, the sum of $575,000 must be subtracted. The remaining figure shall represent the [plaintiffs share.” The court approved the stipulation on August 13, 2002, thereby modifying the dissolution judgment. The parties also agreed to the withdrawal of the defendant’s appeal.

On March 4, 2010, approximately one month before her sixtieth birthday, the plaintiff filed a motion to modify alimony, postjudgment. She claimed that the “market conditions resulted in a substantial reduction in the value of the defendant’s retirement assets . . . [such that she now was] unable to support herself through the interest awarded to her in the defendant’s profit sharing plan, which is substantially changed from the situation anticipated by the court in making the alimony award.” The defendant objected on the ground that the judgment ordered periodic alimony that would terminate on the plaintiffs sixtieth birthday. The defendant also filed a motion seeking, in part, to modify and terminate child support on the ground that the parties’ daughter was attending private school and that the defendant was paying her tuition.

On May 3,2011, the court issued the following orders: “[1] The [c]ourt finds a substantial change in circumstances due to Social Security payments [of $249 weekly] being made to the [plaintiff] for the benefit of the child based on [the defendant’s] Social Security. In addition . . . the market fluctuations and a reduction in [the] [p]laintiffs share of [the] [defendant's retirement assets reduced the income she would have at age [sixty] anticipated by the original [m]emorandum of [d]ecision.

“[2] Child support shall be modified to $241 per week retroactive to [May 16,2009] (date of service of the modification).

“[3] Alimony shall be modified downward to $1095 per week retroactive to [April 24, 2010] with no limitation to duration. Alimony is modifiable by either party. The modification of alimony is based on the income and assets of both parties and the fact that [the] [plaintiff has not become employed full time as anticipated by the original decision.” This appeal followed.

I

The defendant first claims that the court erred in granting the [plaintiffs] motion for modification of alimony where the effect of the court’s order was to transform limited duration alimony into lifetime alimony.” He argues that this case is distinguishable from Scoville v. Scoville, 179 Conn. 277, 426 A.2d 271 (1979) (limited duration alimony modifiable unless decree specifically provides for nonmodifiability), or, in the alternative, that Scoville should be overruled. He also argues that even if Scoville applies, the court in this case abused its discretion in granting the plaintiffs motion to modify alimony. We conclude that this case is controlled by Scoville, that we have no authority to overrule Supreme Court precedent and that the court did not abuse its discretion in granting the plaintiffs motion to modify alimony.

As a preliminary matter, we set forth our standard of review. “An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Trial courts have broad discretion in deciding motions for modification. . . . Modification of alimony, after the date of a dissolution judgment, is governed by General Statutes § 46b-86.” (Citation omitted; internal quotation marks omitted.) Schwarz v. Schwarz, 124 Conn. App. 472, 476, 5 A.3d 548, cert. denied, 299 Conn. 909, 10 A.3d 525 (2010).

Because we are concerned, in this part of our analysis, with whether the alimony provision in the dissolution judgment was nonmodifiable, we employ the following standard. “The construction of a judgment is a question of law for the court. ... As a general rule, judgments are to be construed in the same fashion as other written instruments. . . . The determinative factor is the intention of the court as gathered from all parts of the judgment. . . . The judgment should admit of a consistent construction as a whole. ... It is true that provisions for nonmodification are generally not favored and are upheld only if they are clear and unambiguous. If an award is intended to be nonmodifiable, it must contain express language to that effect. . . . There is no given set of words that must be used to preclude modification; an order is nonmodifiable if the decree distinctly and unambiguously expresses that it is. ... In making this determination, we look only at the dissolution decree itself.” (Citations omitted; internal quotation marks omitted.) Sheehan v. Balasic, 46 Conn. App. 327, 332, 699 A.2d 1036 (1997), appeal dismissed, 245 Conn. 148, 710 A.2d 770 (1998).

Section 46b-86 (a) “suggests a legislative preference favoring the modifiability of orders for periodic alimony . . . [and requires that] the decree itself must preclude modification for this relief to be unavailable. ... If an order for periodic alimony is meant to be nonmodifiable, the decree must contain language to that effect. . . . Such a preclusion of modification must be clear and unambiguous. ... If a provision purportedly precluding modification is ambiguous, the order will be held to be modifiable. ... In determining whether the alimony award is modifiable or nonmodifiable, only the dissolution decree itself may be used.” (Citations omitted; internal quotation marks omitted.) Rau v. Rau, 37 Conn. App. 209, 211-12, 655 A.2d 800 (1995).

The defendant first argues that this case is not controlled by Scoville. In Scoville, the trial court had awarded alimony in the dissolution judgment in the amount of $100 per week for three years. Scoville v. Scoville, supra, 179 Conn. 277. The judgment provided that “[a]t the end of the three year period, the payment order of alimony shall terminate.” (Internal quotation marks omitted.) Id. The plaintiff thereafter filed a motion for modification, which the court denied on the ground that the award was nonmodifiable, being of fixed duration. Id., 278. On appeal, the Supreme Court explained that the alimony order was an ambiguous order and that it had treated similar orders as modifiable. Id., 280. The court went on to conclude: “[I]n that part of the instant order stating ‘[a]t the end of the three year period, the payment order of alimony shall terminate,’ it is implicit that during that period there be no intervening material change in circumstances warranting modification. . . . The trial court should have reached and decided the issue of whether there was a substantial change in circumstances justifying modification of the alimony order.” Id. We conclude that the language of the present case is similarly ambiguous. Specifically, the language of the modified judgment provides, in relevant part, that alimony shall terminate upon the plaintiffs sixtieth birthday. There is no provision in the judgment, however, that states that alimony is nonmodifiable. Accordingly, we conclude that this case is controlled by Scoville, and that the alimony award is modifiable upon a showing of a substantial change in circumstances. See id.; see also Burke v. Burke, 94 Conn. App. 416, 422-24, 892 A.2d 964 (2006); Rau v. Rau, supra, 37 Conn. App. 213; Lilley v. Lilley, 6 Conn. App. 253, 255-56, 504 A.2d 563, cert. denied, 200 Conn. 801, 509 A.2d 516 (1986).

The defendant also argues that the reasoning of Sco-ville is flawed and urges us to overrule it. As an intermediate appellate court, however, we are not at liberty to overrule, reevaluate or reexamine controlling precedent of our Supreme Court. See Stuart v. Stuart, 297 Conn. 26, 45-46, 996 A.2d 259 (2010) (“it is manifest to our hierarchical judicial system that [the Supreme Court] has the final say on matters of Connecticut law and that the Appellate Court and Superior Court are bound by [its] precedent”).

The defendant next argues that, even if Scoville applies in this case, the trial court abused its discretion in failing to consider the undisputed facts of this case and the plaintiffs voluntary settlement of the defendant's appeal from the judgment of dissolution, by which, he argues, the plaintiff waived her claim to alimony after her sixtieth birthday. We are not persuaded.

In the dissolution judgment, the court ordered alimony in the amount of $1500 per week, and it explained that “[a]limony shall terminate on the plaintiffs sixtieth birthday because the plaintiff will then be able to support herself through the interest awarded to her by this judgment in the defendant’s profit sharing plan.” This portion of the dissolution judgment did not change after the judgment was modified. Although the plaintiff later agreed to a lesser amount of the defendant’s profit sharing plan, the portion of the judgment concerning alimony remained unchanged. The court clearly anticipated that the plaintiff would be able to support herself through her interest in the profit sharing plan. As she approached her sixtieth birthday with a significant drop in the value of the sum she had received from the profit sharing plan, as was found by the court, she filed a motion for modification.

At the conclusion of the hearing on the parties’ motions, the court specifically found that “[the dissolution court] clearly intended that the plaintiff would be able to be self-supporting if she got the $1,887,000 [the court] originally intended from the retirement assets. [There is] no evidence before [the court] that any judge considered the impact of the [agreed upon] reduction of that sum on the termination of the alimony. The parties did not raise that issue at the time the settlement was reached, and the [defendant’s] appeal [from the dissolution judgment] was withdrawn. The court is compelled to take that into consideration today. It’s clear that the defendant has been able to retire . . . and not have any diminished lifestyle as a result of his retirement. If the [plaintiffs] . . . alimony is not continued, her lifestyle will be significantly diminished. She will have to liquidate assets in order to support herself.”

The court, in its written order, specifically found that the drop in the value of the sum the plaintiff had received from the defendant’s profit sharing plan substantially had affected the plaintiffs income, and it ordered that alimony should continue. It did reduce the amount, however, from $1500 per week to $1095 per week. On the basis of the record before us, we are not persuaded that it was an abuse of the court’s discretion to continue alimony, as it appears to effectuate the intent of the dissolution judgment.

II

The defendant next claims that the court “erred in denying [his] motion to modify [and terminate] child support where the minor child was enrolled in public school at the time of the entry of the original child support order, but where the child was subsequently enrolled in a private school where the annual tuition, room and board, paid solely by the [defendant], was approximately $46,000 and where the [defendant’s] annual child support obligation was $26,000.” We are not persuaded.

“[The] trial court is endowed with broad discretion in domestic relations cases. Our review of such decisions is confined to two questions: (1) whether the court correctly applied the law, and (2) whether it could reasonably have concluded as it did.” (Internal quotation marks omitted.) Lefebvre v. Lefebvre, 75 Conn. App. 662, 664, 817 A.2d 750, cert. denied, 263 Conn. 921, 822 A.2d 243 (2003).

Under the terms of the dissolution judgment, the defendant was ordered to pay $500 per week in child support. On May 5, 2009, the defendant filed a motion seeking, in relevant part, to modify and terminate child support on the basis of his paying the private school tuition costs of the parties’ daughter. The defendant, however, did not proceed on that motion, but he filed a new motion to modify and terminate child support on May 2, 2011, asking that the court terminate his obligation because he was paying the private school tuition of the parties’ daughter. The court denied the motion to modify and terminate child support, but it reduced the child support amount to $241 per week, retroactive to May 16, 2009. On appeal, the defendant argues: “The trial court abused its discretion in failing to modify [and terminate] the child support order to reflect the [defendant’s] payments of approximately $46,000 per year toward tuition, room and board at the Taft School.”

In the dissolution judgment, the defendant was ordered to “pay child support to the plaintiff in the amount of $500 weekly.” The judgment also provided: “The parties shall share equally the cost of any qualified child care and any unreimbursed medical expenses for the minor child.” There was no requirement in the judgment that either party bear the responsibility of paying for their daughter to attend private school. The defendant voluntarily assumed this financial obligation for his daughter’s benefit.

At the hearing on the parties’ motions, the court found that the decision to send their daughter to private school was a unilateral decision made by the defendant. It further found that the plaintiff made significant financial expenditures on behalf of the child. Specifically, the court found: “It was clear to the court on a review of the file and the testimony that was presented yesterday that the decision for the minor child to attend Taft boarding . . . school was a unilateral decision by [the defendant]. It’s also clear to the court that [the plaintiff] visits the child one or two times a week and is far more involved in the child’s life and . . . spends substantial amounts of money supporting the child in addition to what [the defendant] is paying in tuition and sundry items that he pays at Taft School. The court finds that the unilateral decision to enroll the child in a private boarding school is not a basis for modification of the child support.” The court’s ruling is in accord with our holding in Culver v. Culver, 127 Conn. App. 236, 243, 17 A.3d 1048 (“[t]he defendant’s voluntary acceptance of a subsequent obligation to pay private school tuitions in no way lessened his court-ordered child support obligation”), cert. denied, 301 Conn. 929, 23 A.3d 724 (2011).

The court went on to find a substantial change in circumstances due to the plaintiffs receipt of social security payments for the benefit of the child, however, and it reduced the defendant’s direct child support obligation accordingly, cutting it by slightly more than 50 percent, although the weekly total amount of support received by the plaintiff remained the same, at $500. After reviewing the record and the arguments of the parties, we are not persuaded that the court abused its discretion by not terminating the defendant’s child support obligation.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       We note that our Supreme Court has “indicated that if alimony is not awarded in a final dissolution decree, it cannot be awarded in the future based on changed circumstances.” Passamano v. Passamano, 228 Conn. 85, 90 n.7, 634 A.2d 891 (1993). Nevertheless, “the power to act equitably is the keystone to the court’s ability to fashion relief in the infinite variety of circumstances that arise out of the dissolution of a marriage. . . . These equitable powers give the court the authority to consider all the circumstances that may be appropriate for a just and equitable resolution of the marital dispute.” (Citation omitted; internal quotation marks omitted.) Porter v. Porter, 61 Conn. App. 791, 797, 769 A.2d 725 (2001). “The trial court may award alimony to a party even if that party does not seek it and has waived all claims for alimony.” Lord v. Lord, 44 Conn. App. 370, 374, 689 A.2d 509, cert. denied, 241 Conn. 913, 696 A.2d 985 (1997), cert. denied, 522 U.S. 1122, 118 S. Ct. 1065, 140 L. Ed. 2d 125 (1998).

       The May 5, 2009 motion was entitled “Motion to Modify Primary Residence of Minor Child, Child Support and Alimony.” During an April 10, 2010 hearing when the parties, in part, were discussing that motion, the parties appeared to agree that the motion was stale, not having been proceeded on within ninety days of its filing. See Practice Book §§ 25-26 and 25-34.

       We offer no opinion on the propriety of the retroactivity of the court’s order going back to the date of service of the May 5, 2009 motion. Neither party has raised this as an issue.

       We note that the defendant seems to ignore the fact that the court did reduce his child support obligation from $500 per week to $241 per week, albeit for a reason unrelated to his payment of the child’s private school tuition.


source: Caselaw Access Project

author: BEACH, J.

license: Public Domain

text:
    BETTY SULLIVAN, CONSERVATOR (ESTATE OF EDITH FRYER) v. ANTHONY LAZZARI ET AL.

    (AC 32616)
    DiPentima, C. J., and Beach and Sheldon, Js.

      Argued February 8 —
    officially released May 29, 2012

      Kimberly Albright-Lazzari and Anthony Lazzari, pro se, the appellants (defendants).

      John F. Conway, for the appellee (plaintiff).

       In the context of this case, the name “Lazzari” has been spelled differently on different documents. The cover of the defendants’ brief contains the surname spelled with two “r’s” in the case caption. The surname is spelled, however, on the appearance forms with one “r.” We therefore spell the surname with one “r” throughout the opinion.

   Opinion

BEACH, J.

The self-represented defendants, Anthony Lazzari and Kimberly Albright-Lazzari, appeal from the judgment of the trial court rendered in favor of the plaintiff, Betty Sullivan, conservator of the estate of Edith Fryer, in this summary process action. The defendants claim that the court (1) violated their constitutional rights by denying their request for a jury trial, (2) erred in denying their motion to dismiss with prejudice, (3) erred in denying their motion to strike, (4) denied them the right to call material witnesses, (5) erred in determining that the plaintiff had met her burden of proof and (6) erred in permitting the plaintiff to substitute a newly appointed representative of Fryer’s estate. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. The plaintiff had a complaint dated December 22, 2009, served on the defendants. The complaint alleged that the defendants were in possession of 132 Rock Creek Road, New Haven (premises), and that their right or privilege to occupy the premises had terminated. The complaint further alleged that, although the plaintiff served the defendants on December 9, 2009, with a written notice to quit the premises on or before December 15, 2009, the defendants remained in possession of the premises after December 15, 2009.

At trial, the plaintiff testified to the following. Fryer, the plaintiffs mother, owned the premises, a one-family residence. The defendants were permitted to move into the premises in late 2006. She did not ask them to sign a lease or to pay rent. She first asked the defendants to leave the premises in the summer of 2009. After being appointed conservator of Flyer’s estate, the plaintiff commenced an eviction action against the defendants. The defendants refused, however, to leave the premises and, at the time of trial, still resided at the premises.

Following a trial to the court, the court issued a written decision on August 12, 2010, in which it rendered judgment in favor of the plaintiff. The court found that the plaintiff demonstrated by a preponderance of the evidence that the defendants’ right to occupy the premises had terminated. The court ordered that a final stay of its order be in effect through September 15, 2010. This appeal followed. Additional facts will be set forth as necessary.

After the defendants filed their appeal, they filed a motion for articulation and a motion for review in this court. The motion for review and the requested relief were granted and the trial court was ordered to articulate the factual and legal basis for its decision. In its articulation, the court articulated that it had found that the testimony of the plaintiff was “completely credible.” The court specifically found that the defendants had been invited to move into the premises and had never been asked to pay rent or to sign a lease. Sometime thereafter, the plaintiff, as conservator, asked the defendants to vacate the premises. The court concluded that the defendants once had a right or privilege to occupy the premises, but that the right or privilege had terminated pursuant to General Statutes § 47a-23 (a) (3).

“Summary process is a special statutory procedure designed to provide an expeditious remedy. ... It enable [s] landlords to obtain possession of leased premises without suffering the delay, loss and expense to which, under the common-law actions, they might be subjected by tenants wrongfully holding over their terms. . . . Summary process statutes secure a prompt hearing and final determination. . . . Therefore, the statutes relating to summary process must be narrowly construed and strictly followed.” (Internal quotation marks omitted.) Housing Authority v. DeRoche, 112 Conn. App. 355, 361, 962 A.2d 904 (2009).

I

The defendants argue that the court violated their constitutional rights by denying their request for a jury trial. We disagree.

The defendants were not wrongly deprived of a jury trial because there is no right to a jury trial in a summary process action. General Statutes § 62-215 provides in relevant part: “[Tjhere shall be no right to trial by jury ... in a summary process case. . . .”

The defendants argue that § 62-215 is unconstitutional as to summary process actions. They contend that when a plaintiff seeks monetary payments, the occupants must be afforded the right to a jury trial. We do not agree.

First, the defendants’ premise is erroneous. Although they stated in their “Motion to Demand a Jury Trial Preserved in the Constitutions” that “the [p]laintiff is seeking monetary payments as described in her ‘ [n] otice to [q]uit,’ ” the plaintiff seeks in the complaint only possession of the premises. The possibly relevant language in the notice to quit is standard language stating that any payments after service of the notice to quit will be accepted as payments for use and occupancy. Use and occupancy payments during the pendency of an action are not money damages.

Second, the constitutionality of § 52-215, as it pertains to summary process actions, was upheld in Kredi v. Benson, 1 Conn. App. 511, 514-16, 473 A.2d 333, cert. denied, 193 Conn. 803, 474 A.2d 1260 (1984). In Kredi, a summary process action based on nonpayment of rent, the defendants argued that “because the summary process statute in effect in 1818 did not apply to nonpayment of rent actions, because ejectment was the remedy available for nonpayment of rent, and because ejectment was triable to a jury in 1818, a summary process action for nonpayment of rent, therefore, is now triable to a jury.” Id., 514-15. The court rejected that claim and stated that “while article first, § 19 of the Connecticut constitution provides that the right of trial by jury shall remain inviolate, this did not mean that such a right could not be subjected to reasonable conditions and regulations. . . . [I]n some cases, where the monetary interests are relatively small, such regulations and conditions operate to cut off the right completely. ... In establishing such conditions and regulations the legislature is free to use the character of the tenancy as a benchmark rather than its monetary value so long as there is a rational basis for such procedure.” (Citations omitted; internal quotation marks omitted.) Id., 515. The court concluded that the legislature had a rational basis for the conditions and regulations set forth in § 52-215. Id., 515-16.

“Article first, § 19, of the constitution of Connecticut, as amended by article four of the amendments, provides in relevant part: The right of trial by jury shall remain inviolate .... The provision guarantees the right to a jury trial in all cases for which such a right existed at the time of the adoption of that constitutional provision in 1818. . . . The fundamental right to a jury trial, however, is subject to certain limitations. . . . One limitation is that the right does not extend to equitable claims.” (Citations omitted; internal quotation marks omitted.) Ackerman v. Sobol Family Partnership, LLP, 298 Conn. 495, 532, 4 A.3d 288 (2010).

The summary process statute was enacted in 1806. General Statutes (1808 Rev.), p. 450, tit. 97, c. 23; see also Lorch v. Page, 97 Conn. 66, 72, 115 A. 681 (1921). This statute provided for a jury trial. “Incorporated in the act was a provision giving power to any assistant or justice of the peace in the town in which the leased premises were situated to issue a summons to the lessee to appear before him, and giving him the further power to summon a jury of six disinterested freeholders of the town to pass upon certain issues. ... In 1949, the General Assembly repealed this section.” Ruttenberg v. Dine, 137 Conn. 17, 18, 74 A.2d 211 (1950).

Until the enactment of the Public Acts of 1957, the remedy of summary process applied only in cases involving a lease that had been terminated. See Jo-Mark Sand & Gravel Co. v. Pantanella, 139 Conn. 598, 602-603, 96 A.2d 217 (1953) (remedy of summary process available only when lease had been terminated); see also Cohn v. Fennelly, 138 Conn. 474, 476, 86 A.2d 183 (1952) (essential to summary process action that lease existed between parties and that it was terminated); Thompson v. Coe, 96 Conn. 644, 659, 115 A. 219 (1921) (“[t]he only jurisdiction of the justice court in summary process was to determine as to the right of possession on account of forfeiture for nonpayment of rent”). By Public Acts 1957, No. 291, the remedy of summary process was expanded. See Southington v. Francis, 159 Conn. 64, 69 n.2, 266 A.2d 387 (1970). The 1957 act amended the statute now codified as § 47a-23 to include situations in which premises are claimed to be “occupied by one who has no right or privilege to occupy said premises, or where one originally has the right or privilege to occupy said premises but such right or privilege has terminated and the owner . . . shall desire to obtain possession or occupancy of the same . . . .” Public Acts 1957, No. 291, § 1.

In 1818, then, the right to a jury trial existed in summary process matters; Ruttenberg v. Dine, supra, 137 Conn. 18; but until 1957, only cases involving leases could be brought by summary process. The right to a jury trial in cases involving the revocation of a right or privilege to occupy premises did not exist at any time. Prior to 1957, cases involving the revocation of a privilege to occupy premises apparently were tried in equity. See, e.g., Chornock v. Popp, 15 Conn. Sup. 153 (1947) (no legal remedy existed and equitable injunction issued when bishop’s permission to occupy rectory ended); Roy v. Moore, 85 Conn. 159, 163, 82 A. 233 (1912) (generally suit in equity for injunction lies in cases where title not in dispute). Therefore, the defendants were not entitled to a jury trial in the present case.

II

The defendants also claim that the court erred in denying their motion to dismiss with prejudice. We disagree.

“We previously have articulated our standard of reviewing challenges to the trial court’s subject matter jurisdiction in a summary process action on the basis of a defect in the notice to quit. Before the [trial] court can entertain a summary process action and evict a tenant, the owner of the land must previously have served the tenant with notice to quit. ... As a condition precedent to a summary process action, proper notice to quit [pursuant to § 47a-23] is a jurisdictional necessity. . . . This court’s review of the trial court’s determination as to whether the notice to quit served by the plaintiff effectively conferred subject matter jurisdiction is plenary.” (Citations omitted; internal quotation marks omitted.) Bayer v. Showmotion, Inc., 292 Conn. 381, 388, 973 A.2d 1229 (2009).

In January, 2010, the defendants filed a motion to dismiss with prejudice in which they argued that the court lacked subject matter jurisdiction because the notice to quit was defective in that it (1) did not specify the exact room of the premises that the defendants claim the plaintiff gave them permission to occupy, (2) was not served after the tenth day of the month under General Statutes § 47a-15a and (3) did not contain the exact name of the occupants. After a hearing, the court denied the motion. The court held that the defendants’ arguments did not support the conclusion that the court did not have subject matter jurisdiction.

The court properly denied the defendants’ motion because the notice to quit complied with the requirements of § 47a-23 (b), which provides in relevant part: “The notice shall be in writing substantially in the following form: ‘I (or we) hereby give you notice that you are to quit possession or occupancy of the (land, building, apartment or dwelling unit, or of any trailer or any land upon which a trailer is used or stands, as the case may be), now occupied by you at (here insert the address, including apartment number or other designation, as applicable), on or before the (here insert the date) for the following reason (here insert the reason or reasons for the notice to quit possession or occupancy using the statutory language or words of similar import, also the date and place of signing notice). A.B.’ If the owner or lessor . . . knows of the presence of an occupant but does not know the name of such occupant, the notice for such occupant may be addressed to such occupant as ‘John Doe’, ‘Jane Doe’ or some other alias which reasonably characterizes the person to be served.”

The notice to quit tracked the statutorily required language. First, the notice to quit identified the premises: It stated: “I hereby give you notice that you are to quit possession and occupancy of the dwelling now occupied by you at #132 Rock Creek Road, New Haven . . . .” The court credited the plaintiffs testimony that the defendants occupied the entire house, except for the bedroom of the plaintiffs brother, and that they had access to the entire house. There was no ambiguity or mistake regarding what premises were the subject of the notice to quit. Although in other circumstances more specificity may be necessary in order to avoid ambiguity or uncertainty; see Vogel v. Bacus, 133 Conn. 95, 98, 48 A.2d 237 (1946); there was no ambiguity or uncertainty on the facts of this case. See Rodrigues v. Villanueva, Superior Court, judicial district of Hartford-New Britain at Hartford, Housing Session, Docket No. 95365 (February 2, 1998).

Second, the alleged failure of the plaintiff to comply with § 47a-15a did not deprive the court of subject matter jurisdiction because that statutory section does not apply. Section 47a-15a provides in relevant part: “If rent is unpaid when due and the tenant fails to pay rent within nine days thereafter . . . the landlord may terminate the rental agreement . . . .” This statutory section, which permits a time period for payment of rent, does not apply because the present case does not concern unpaid rent or a rental agreement.

Third, the defendants claim that one of their last names was misspelled on the notice to quit. If so, the misspelling was a clerical error that does not deprive the court of subject matter jurisdiction. Additionally, it was not necessary to include the name of a minor child in the notice to quit because General Statutes § 47a-26h (a) provides in relevant part: “A summary process judgment shall bind (1) the named defendants and any minors holding under them . . . .”

Ill

The defendants next claim that the court erred in denying their motion to strike. We disagree.

In January, 2010, the defendants filed a motion to strike the plaintiffs complaint. The defendants essentially argued that the complaint failed to state facts necessary to support their claims. The court denied the motion.

Section 47a-23 provides in relevant part: “(a) When . . . the owner’s . . . legal representative . . . desires to obtain possession or occupancy of any land or building . . . and ... (3) when one originally had the right or privilege to occupy such premises but such right or privilege has terminated . . . such owner’s . . . legal representative . . . shall give notice to each . . . occupant to quit possession or occupancy of such land, building, apartment or dwelling unit . . . before the time specified in the notice for the . . . occupant to quit possession or occupancy.”

“The standard of review in an appeal challenging a trial court’s granting of a motion to strike is well established. A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court’s ruling is plenary. . . . We take the facts to be those alleged in the [pleading] . . . and we construe the [pleading] in the manner most favorable to sustaining its legal sufficiency.” (Internal quotation marks omitted.) Ameriquest Mortgage Co. v. Lax, 113 Conn. App. 646, 649, 969 A.2d 177, cert. denied, 292 Conn. 907, 973 A.2d 103 (2009). General Statutes § 47a-23a (a) provides in relevant part: “If, at the expiration of the three days prescribed in section 47a-23, the . . . occupant neglects or refuses to quit possession or occupancy of the premises, any commissioner of the Superior Court may issue a writ, summons and complaint which shall be in the form and nature of an ordinary writ, summons and complaint in a civil process, but which shall set forth facts justifying a judgment for immediate possession or occupancy of the premises and make a claim for possession or occupancy of the premises. ...” Practice Book § 10-20 states in relevant part that a complaint “shall contain a concise statement of the facts constituting the cause of action . . . The defendants also argue that the “complaint is vague and unconstitutional as applied in this present matter, and does not set forth the necessary facts to place the occupants on proper and timely notice so the occupants can properly prepare a defense.”

The complaint was not deficient in any of the ways claimed by the defendants. In the complaint, the plaintiff alleged that the defendants were in possession of the identified premises despite the termination of their right or privilege to occupy it. The complaint further alleged that, although the time designated in the notice to quit possession of the premises had passed, the defendants remained in possession. The allegations provided the essential facts necessary to respond and provided sufficient notice.

IV

The defendants next claim that the court “unlawfully denied us of our legal right to have and call material and rebuttal witnesses and present vital evidence in our defense, and denied us of our full legal right to be heard, of fair procedures and of a fair trial.” We are not persuaded.

The defendants specifically argue that the court erred in denying their request for subpoenas and in denying their “motion for a kangaroo mistrial and . . . motion [to] dismiss with prejudice . . . .” On May 12, 2010, the defendants filed a “motion for a kangaroo mistrial [and] motion to dismiss with prejudice” in which they argued that the court improperly had denied their requests for material witnesses and denied their right to a fair trial. Also on that date, the defendants filed multiple requests for subpoenas. The defendants explained that the May 12, 2010 requests were in response to a request by the court, in connection with an earlier request for subpoenas, that the defendants specifically state the subject matter of each witness’ testimony and the legal claim that the testimony would support. On May 13, 2010, prior to the start of evidence, the court denied the May 12, 2010 requests, stating: “I was looking for specific information I didn’t get, but I’ve denied the requests without prejudice .... If we go through today, and I find that I need evidence from any of those witnesses then I’ll continue the matter and we’ll bring them in.”

Our rules of practice confer on courts discretionary authority to issue subpoenas on behalf of self-represented parties. Practice Book § 7-19 provides: “Self-represented litigants seeking to compel the attendance of necessary witnesses in connection with the hearing of any civil matter, including matters scheduled on short calendar or special proceeding lists or for trial, shall file an application to have the clerk of the court issue subpoenas for that purpose. The clerk, after verifying the scheduling of the short calendar hearing, special proceeding or trial, shall present the application to the judge before whom the matter is scheduled for hearing, or the administrative judge or any judge designated by the administrative judge if the matter has not been scheduled before a specific judge, which judge shall conduct an ex parte review of the application and may direct or deny the issuance of subpoenas as such judge deems warranted under the circumstances, keeping in mind the nature of the scheduled hearing and future opportunities for examination of witnesses, as may be appropriate.” Accordingly, the court’s ruling is reviewed under an abuse of discretion standard.

The defendants did not indicate in their briefs what additional evidence they wished to offer, through witnesses they wished to have subpoenaed or otherwise, that was excluded from evidence. The court indicated that the subpoena requests were not specific enough, but that it would continue the matter if additional evidence would help the defendants’ case. The issues germane to the trial were narrow. The court apparently determined that no additional evidence was needed. We conclude that the court did not abuse its discretion in denying the subpoena requests or denying the defendants’ motion.

Furthermore, we note that the defendants were permitted to cross-examine extensively the plaintiffs witnesses, H. Mark DeAngelis, the state marshal who served the notice to quit, and the plaintiff, the conservator of Fryer, who owned the premises. After Anthony Lazzari finished cross-examining the plaintiff, Kimberly Albright-Lazzari cross-examined her. The defendants also were permitted to present their own case, in which they both testified as to their version of the events. The defendants did not contest that the plaintiff was the conservator of Fryer, the owner of the premises, that the plaintiff gave them permission to live in the house, that they did not sign a lease, that they later were requested to leave or that they were served with a notice to quit. It is by no means clear how additional evidence could have advanced the defendants’ cause. The defendants were given their day in court and were given the due process to which they were entitled.

V

The defendants next seem to claim that the court erred in determining that the plaintiff had met her burden of proof. We disagree.

There was evidence presented at trial from which the court could have determined that the plaintiff had met her burden of proof. DeAngelis testified that he served the notice to quit on the defendants, and the defendants did not dispute that they were served with a notice to quit. The court credited the plaintiffs testimony; she testified that she allowed the defendants to move into the premises and never asked them to sign a lease or to pay rent. She further testified that Fryer owned the premises and that, after being appointed Fryer’s conservator, she asked the defendants to leave the premises. The defendants refused, however, to leave the premises and, at the time of trial, still resided at the premises. The court’s conclusion was not erroneous simply because some of the plaintiffs testimony may have been contradicted by testimony of other witnesses. As the trier of fact, it was the court’s exclusive province “to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness’ testimony. . . . Thus, if the court’s dispositive finding . . . was not clearly erroneous, then the judgment must be affirmed. . . . The function of the appellate court is to review, and not retry, the proceedings of the trial court.” (Internal quotation marks omitted.) LPP Mortgage, Ltd. v. Lynch, 122 Conn. App. 686, 700, 1 A.3d 157 (2010). The court’s findings were properly supported by the evidence.

VI

The defendants last claim that the court erred in substituting as the plaintiff a newly appointed representative of the estate. We disagree.

On August 30, 2011, while this appeal was pending, a hearing was held in the trial court. At that time, the plaintiffs attorney informed the court of the following. The owner of the premises, Fryer, had died on May 24, 2011, and the plaintiff Sullivan was appointed representative of the estate. Because of financial hardship, the plaintiff moved the Probate Court to appoint someone else to be the representative. On August 16, 2011, the Probate Court appointed attorney Christopher J. Donlin as the administrator of Fryer’s estate. The plaintiffs attorney then moved to have Donlin substituted as the plaintiff, which motion the court granted over the defendants’ objection.

General Statutes § 52-599 provides in relevant part: “(a) A cause or right of action shall not be lost or destroyed by the death of any person, but shall survive in favor of or against the executor or administrator of the deceased person.

“(b) A civil action or proceeding shall not abate by reason of the death of any party thereto, but may be continued by or against the executor or administrator of the decedent. If a party plaintiff dies, his executor or administrator may enter within six months of the plaintiffs death or at any time prior to the action commencing trial and prosecute the action in the same manner as his testator or intestate might have done if he had lived. If a party defendant dies, the plaintiff, within one year after receiving written notification of the defendant’s death, may apply to the court in which the action is pending for an order to substitute the decedent’s executor or administrator in the place of the decedent, and, upon due service and return of the order, the action may proceed. . . .”

According to the plain language of § 52-599 (b), the court had the authority to substitute Donlin, the newly appointed representative, in place of the plaintiff. We find no merit to the defendants’ arguments that the statute does not apply because the plaintiff resigned as conservator or that Donlin lacks standing. Donlin was appointed representative by the Probate Court. In order to comply with § 52-599 (b), which provides that a cause of action shall not be lost as a result of the death of one of the parties, the action was continued by Donlin, the representative of Fryer’s estate.

The judgment is affirmed.

In this opinion the other judges concurred.

       During the pendency of this appeal, Christopher J. Donlin, administrator of the estate of Edith Fryer, was substituted as the party plaintiff. See part VI of this opinion. For convenience, we use the term “plaintiff” to refer to the original plaintiff, Sullivan.

       The defendants raise additional claims in their brief to which we find no merit, and, accordingly, we will not address them in detail.

       The “right” in this case was, of course, a privilege extended by the owner or the owner’s representative.

       General Statutes § 47a-23 provides in relevant part: “(a) When . . . the owner’s . . . legal representative . . . desires to obtain possession or occupancy of any land or building . . . and ... (3) when one originally had the right or privilege to occupy such premises but such right or privilege has terminated . . . such owner’s . . . legal representative . . . shall give notice to each . . . occupant to quit possession or occupancy of such land, building, apartment or dwelling unit . . . before the time specified in the notice for the . . . occupant to quit possession or occupancy.”

       The relief available in summary process actions is possession of the premises. Whatever monetary relief may follow, such as payment for use and occupancy, is purely ancillary. In the present case, moreover, the complaint sought only possession of the premises.

       We note that even if the right to a jury trial in such cases existed in 1818, the reasoning of Kredi v. Benson, supra, 1 Conn. App. 511, nonetheless applies.

       The notice to quit was served on December 9, 2009.

       General Statutes § 47a-23, which sets forth requirements pertaining to notices to quit, is relevant to the requirements of the complaint, which are specifically addressed in General Statutes § 47a-23a.

       The defendants also argue that the court erred in referencing stricken testimony in its articulation. The court noted that the plaintiff testified that she permitted the defendants to move into the residence after they had been evicted from other premises. The defendants objected to the testimony that they had been evicted, and the court sustained the objection. Kimberly Albright-Lazzari testified that, prior to moving into the premises, she had lived with her father and her father had been evicted. The defendants’ reason for leaving their former residence was not relevant, so that reference to past history was not harmful in the circumstances of this case.


text:
    LINA KUNG ET AL. v. CHARLES DENG ET AL.
    (AC 33431)
    Gruendel, Beach and Schaller, Js.
    Argued March 19 —
    officially released May 29, 2012

      Marc J. Ubaldi, for the appellants (plaintiffs).

      Daniel J. Krisch, with whom were Coleman C. Duncan and, on the brief, Sandra M. Bevans, for the appel-lee (named defendant).
   Opinion

BEACH, J.

The plaintiffs, Lina Kung and Ngan-Qiu Fung, appeal from the judgment of the trial court denying their motion to open the judgment of dismissal rendered in favor of the defendants, Charles Deng, Donald Gallant and Dawn Tosti. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. In July, 2008, the plaintiffs commenced an action against the defendants sounding in negligence. The complaint alleged that on July 24, 2006, while Deng was driving a motor vehicle in which the plaintiffs were passengers, Deng’s vehicle collided with a vehicle driven by Gallant and owned by Tosti. The complaint alleged that both Deng and Gallant were operating their respective vehicles in a negligent manner, and, as a result of their negligence, the plaintiffs suffered injuries.

In August, 2008, Deng served interrogatories and requests for production on the plaintiffs, as did Gallant and Tosti. The plaintiffs responded to the defendants’ interrogatories and requests for production, but failed to provide copies of various requested medical records. At a pretrial hearing on March 24, 2010, the court ordered that the plaintiffs supply the defendants with copies of medical records from Harmony Psychological, Point Acupuncture, DCBK Family Chiropractic and Grand Medical. The plaintiffs did not produce the records. At a pretrial hearing on June 9, 2010, the court ordered the plaintiffs to produce medical records for Harmony Psychological, Point Acupuncture, DCBK Family Chiropractic and Grand Medical on or before July 31, 2010, or the case would be dismissed for failure to comply with discovery.

On July 30, 2010, the plaintiffs filed a motion for extension of time, in which they sought an additional sixty days within which to obtain and to disclose the medical records. Deng filed an objection to the plaintiffs’ motion for extension of time. Gallant and Tosti later joined in the objection and filed a motion to dismiss the case on the basis that the plaintiffs had failed to comply with the court’s June 9, 2010 order. After a hearing on September 7, 2010, the court denied the plaintiffs’ motion for extension of time and granted the motion to dismiss.

Pursuant to General Statutes § 52-212 and Practice Book § 17-4, the plaintiffs, on January 6, 2011, filed a motion to open the judgment of dismissal that had been rendered by the court on September 7, 2010. In their motion, the plaintiffs argued that they resided in New York and received most of their medical treatment related to the accident in New York. The plaintiffs asserted that they had made efforts to obtain the missing medical records and were able to locate some of them at the time the motion to open the judgment was filed.

On February 22, 2011, the court held a hearing on the motion. At the hearing, the plaintiffs argued that they had made efforts to comply with discovery and that they had given the defendants the medical records that they were able to obtain. Counsel for Gallant and Tosti stated that they were still missing medical records pertaining to both plaintiffs from Harmony Psychological and DCBK Chiropractic and were missing approximately three months of records from Point Acupuncture. Counsel for Deng agreed that he as well had not received copies of those records.

On April 8, 2011, the court issued a written memorandum of decision denying the plaintiffs’ motion to open. The court concluded that the plaintiffs had failed to meet their burden of demonstrating that they were prevented from prosecuting this action because of mistake, accident or reasonable cause. The court dismissed the case and stated that the plaintiffs failed to comply with its March 24, 2010 and June 9, 2010 orders, and, as a result, the defendants were prejudiced in their defense of the case because of the plaintiffs failure to comply with discovery. This appeal followed.

Because neither the appeal nor the motion to open the judgment was filed within twenty days from the rendering of the judgment of dismissal, we consider only the court’s action on the plaintiffs’ motion to open. “In an appeal from a denial of a motion to open a judgment, our review is limited to the issue of whether the trial court has acted unreasonably and in clear abuse of its discretion. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. . . . The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did.” (Internal quotation marks omitted.) Spilke v. Spilke, 116 Conn. App. 590, 594-95, 976 A.2d 69, cert. denied, 294 Conn. 918, 984 A.2d 68 (2009).

“Except in cases in which a judgment has been obtained by fraud, duress or mutual mistake or, under certain circumstances, where newly discovered evidence exists to challenge the judgment, the power of a court to open a judgment after a default has entered is controlled by statute. . . . Pursuant to . . . § 52-212 (a), a trial court may set aside a default judgment within four months of the date it was rendered provided that the aggrieved party shows reasonable cause or that a good cause of action or defense existed at the time the judgment was entered. The aggrieved party must additionally demonstrate that he was prevented by mistake, accident or other reasonable cause from prosecuting or defending the original action. General Statutes § 52-212 (a) . . . see also Practice Book § 17-43 (a).” (Citations omitted; internal quotation marks omitted.) Priest v. Edmonds, 295 Conn. 132, 136-37, 989 A.2d 588 (2010).

The plaintiffs do not dispute that they did not comply with the court orders requiring them to comply with the defendants’ discovery requests. Rather, they argue that the court abused its discretion because, despite much effort, the plaintiffs’ counsel was unable to obtain all of the requested records, but had provided the records they knew they had in their possession prior to the case being dismissed. We disagree.

The court did not abuse its discretion when it determined that the plaintiffs’ failure to fully comply with discovery did not constitute a mistake, accident or reasonable cause to open the judgment. Despite having more than two years in which to comply, and having received two orders instructing them to provide the requested records, the plaintiffs failed to do so. The court found that the plaintiffs had not satisfied the requirements for opening the judgment pursuant to § 52-212 (a), and on the basis of our review of the record, we do not conclude that the trial court abused its discretion.

The plaintiffs also argue that the court erred in failing to consider whether the remedy of dismissal was proportional to the discovery violation, in accordance with the three-pronged test set forth in Millbrook Owners Assn., Inc. v. Hamilton Standard, 257 Conn. 1, 17-18, 776 A.2d 1115 (2001). The plaintiffs have not appealed from the judgment of dismissal but have only appealed from the denial of their motion to open and have done so more than twenty days after the judgment of dismissal was rendered. As such, we will not review the plaintiffs’ argument because it concerns the merits of the judgment of dismissal. “On appeal from a denial of a motion to open a judgment where there has been no appeal from the underlying judgment, the good cause required to open that judgment cannot involve the merits of the judgment because that would require a resolution of the same question that would have been resolved had the appellant timely appealed from the judgment and would, in effect, extend the time to appeal. . . . When a motion to open is filed more than twenty days after the judgment, the appeal from the denial of that motion can test only whether the trial court abused its discretion in failing to open the judgment and not the propriety of the merits of the underlying judgment.” (Citation omitted; internal quotation marks omitted.) Conway v. Hartford, 60 Conn. App. 630, 635, 760 A.2d 974 (2000).

The judgment is affirmed.

In this opinion the other judges concurred.

       In Millbrook Owners Assn., Inc. v. Hamilton Standard, supra, 257 Conn. 17-18, the court held that “for a trial court’s order of sanctions for violation of a discovery order to withstand scrutiny, three requirements must be met. First, the order to be complied with must be reasonably clear. . . . Second, the record must establish that the order was in fact violated. . . . Third, the sanction imposed must be proportional to the violation.”


author: BEAR, J.

text:
    RUSSELL KROL v. A.V. TUCHY, INC., ET AL.
    (AC 33527)
    Lavine, Robinson and Bear, Js.
    Argued March 20 —
    officially released May 29, 2012

      Laurence V. Pamoff with whom, on the brief, was Staci Kaman, for the appellant (plaintiff).

      Douglas M. Connors, with whom, on the brief, was Samuel I. Reich, for the appellee (defendant Arrowpoint Capital Corporation).
   Opinion

BEAR, J.

The plaintiff, Russell Krol, appeals from the decision of the workers’ compensation review board (board) affirming the decisions of the workers’ compensation commissioner (commissioner) denying the plaintiffs motion to open and set aside the stipulated settlement agreement (agreement) entered into between the plaintiff and the defendant A.V. Tuchy, Inc., and denying the plaintiffs motion to correct the commissioner’s findings. On appeal, the plaintiff claims that the board improperly affirmed the commissioner’s decisions. We disagree and affirm the decision of the board.

The following facts are not in dispute. The plaintiff suffered a work related injury to his lumbar spine and right knee on April 9, 1998. The defendant accepted compensability and paid benefits to the plaintiff. During the pendency of the workers’ compensation case, the plaintiff filed a civil action against Royal & SunAlliance Personal Insurance Company, the defendant’s insurer (insurer), in state court. The plaintiffs action against the insurer then was removed to federal court (federal action). In the federal action, the insurer was represented by the law firm of Halloran & Sage. In the workers’ compensation case, the defendant was represented by the law firm of Maher & Williams. The parties discussed settlement of the workers’ compensation case, but the defendant wanted the plaintiff to withdraw the federal action in consideration of a settlement, and the plaintiff refused. Eventually, the defendant dropped this demand, and the parties successfully negotiated a settlement of the plaintiffs workers’ compensation claim for $79,150, without requiring the withdrawal of the federal action. The agreement was approved by the workers’ compensation commissioner on December 5, 2006.

On January 10,2007, the federal court dismissed three of the plaintiffs claims against the insurer in the federal action on the ground that the Workers’ Compensation Act (act), General Statutes § 31-275 et seq., provided the exclusive remedy for those claims. On March 14, 2007, the insurer filed a motion for summary judgment on the remaining two counts, which alleged breach of contract and a violation of General Statutes § 31-290c, on the ground that these counts were resolved by the agreement in the workers’ compensation case on December 5, 2006. The federal court granted the insurer’s motion for summary judgment, and, after the plaintiff appealed from that judgment, the United States Court of Appeals for the Second Circuit affirmed the judgment in an unpublished summary order dated April 28, 2009, holding that the plaintiffs claims against the insurer “either [were] barred by the Workers’ Compensation Act exclusivity provision ... or arise under the Workers’ Compensation Act and [were] released by the plain text of the workers’ compensation settlement agreement . . . .” Krol v. Royal & SunAlliance Personal Ins. Co., 324 Fed. Appx. 54 (2d Cir. 2009) (unpublished summary order).

The plaintiff, pursuant to General Statutes § 31-315, filed a motion, dated May 5, 2009, with the workers’ compensation commissioner seeking to open and set aside the agreement on the ground of fraudulent misrepresentation. On June 8, 2010, the commissioner denied the plaintiffs motion to open and set aside, holding that the plaintiff had failed to sustain his burden of proof. On June 14, 2010, the plaintiff filed a “motion to correct findings and award” with the commissioner. He requested that fifty new or corrected findings be made to the findings in the commissioner’s June 8,2010 denial of the plaintiffs motion to open and set aside the agreement. On June 14,2010, the plaintiff filed a petition for review with the board. The plaintiffs preliminary reasons for appeal to the board included the commissioner's denial of the motion to open and set aside the agreement and the commissioner’s possible denial in the future of some or all of the proposed facts set forth in the plaintiffs June 14, 2010 motion to correct. On June 22, 2010, the commissioner denied the plaintiffs motion to correct in its entirety. The plaintiff then filed an amended appeal statement, dated June 23, 2010, which included as a reason for appealing to the board the commissioner’s denial of the plaintiff’s motion to correct.

The board heard the plaintiff’s appeal on December 17, 2010, and it issued a decision on June 1, 2011, affirming the commissioner’s denial of the plaintiff’s motion to open and set aside the agreement and concluding that the commissioner did not abuse his discretion in denying the plaintiff’s motion to correct. This appeal followed.

“As a threshold matter, we set forth the standard of review applicable to workers’ compensation appeals. The principles that govern our standard of review in workers’ compensation appeals are well established. The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Internal quotation marks omitted.) Marandino v. Prometheus Pharmacy, 294 Conn. 564, 572, 986 A.2d 1023 (2010).

I

On appeal, the plaintiff claims that the board improperly affirmed the decision of the commissioner denying the plaintiffs motion to open and set aside the agreement. The plaintiff claims that the commissioner and the board ignored facts that constituted fraudulent misrepresentation and mutual mistake in the defendant’s securing of the parties’ agreement. We are not persuaded.

“The decision to open an award is within the discretion of the commissioner. . . . [Although the commis-sionfer] may modify awards under certain circumstances, [his] power to do so is strictly limited by statute.” (Citation omitted; internal quotation marks omitted.) Bergin v. Dept. of Correction, 75 Conn. App. 591, 598, 817 A.2d 136, cert. denied, 264 Conn. 903, 823 A.2d 1220 (2003). Pursuant to § 31-315, the commissioner, inter alia, “ha[s] the same power to open and modify an award as any court of the state has to open and modify a judgment of such court. This provision extends the commissionfer] ’s power to open and modify judgments to cases of accident ... to mistakes of fact . . . and to fraud . . . but not to mistakes of law.” (Citations omitted; internal quotation marks omitted.) Jones v. Redding, 296 Conn. 352, 369, 995 A.2d 51 (2010).

“The kind of mistake that would justify the opening of a stipulated judgment [or award] . . . must be mutual; a unilateral mistake will not be sufficient to open the judgment [or award]. . . . This court has defined a mutual mistake as one that is common to both parties and effects a result that neither intended. . . . Whether there has been such mistake is a question of fact.” (Citations omitted; internal quotation marks omitted.) Rodriguez v. State, 76 Conn. App. 614, 625, 820 A.2d 1097 (2003).

“[T]he essential elements of fraud are: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury. ... All of these ingredients must be found to exist. . . . Finally, [t]he party claiming fraud . . . has the burden of proof. . . . Whether that burden has been met is a question of fact that will not be overturned unless it is clearly erroneous.” (Internal quotation marks omitted.) Trumbull v. Palmer, 123 Conn. App. 244, 257, 1 A.3d 1121, cert. denied, 299 Conn. 907, 10 A.3d 526 (2010).

In considering what proof must be offered to support the opening of an award on the basis of fraud, we look to analogous situations where a party is attempting to open and set aside a stipulated judgment in the Superior Court. See generally Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 778, 802 A.2d 44 (2002). In the context of marital dissolutions, Connecticut courts have recognized “that fraud may arise when one party accepts a stipulation based on a fraudulent representation by the other party; see Billington v. Billington, 220 Conn. 212, 217-18, 595 A.2d 1377 (1991) .... [T]he . . . remedy available to the defrauded party in such a situation ... is to have the court open and reconsider the judgment as a matter of equity. A marital judgment based upon a stipulation may be opened if the stipulation, and thus the judgment, was obtained by fraud. Id.; see Kenworthy v. Kenworthy, 180 Conn. 129, 131, 429 A.2d 837 (1980). A court will open a marital judgment secured by fraud if: (1) there was no laches or unreasonable delay by the injured party after the fraud was discovered; (2) there is clear proof of the perjury or fraud; and (3) there is a substantial likelihood that the result of the new trial will be different. See Billington v. Billington, supra, 218.” (Internal quotation marks omitted.) Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., supra, 778. We are persuaded that the commissioner should employ a similar standard in considering a motion to open and set aside a stipulated award on the basis of fraud in the workers’ compensation context.

In the present case, the plaintiff argues that, on March 14, 2007, the insurer moved for summary judgment in the federal court on the improper ground that the remaining claims in the federal action were barred by the December 5,2006 settlement agreement in the workers’ compensation case. He argues that the agreement in the workers’ compensation case did not require that the federal action be withdrawn and that, because the insurer’s motion for summary judgment alleged that the federal action was barred by or covered by the agreement, the agreement was either procured by fraud or there was a mutual mistake. Our review of the record does not support the plaintiffs contention that the commissioner erroneously found that the agreement was not the result of mutual mistake of fact or fraud that occurred in the settlement process of the workers’ compensation case.

The language in the stipulated settlement agreement clearly demonstrates the intent of the parties to settle “any and all claims which [the plaintiff] may now have or hereafter may have against the [defendant] under the Workers’ Compensation Act . . . whether said claims . . . have now accrued or may hereafter accrue . . . .” Furthermore, the commissioner found the testimony of the defendant’s attorney to be credible, and he found that the defendant did not procure the agreement through fraud or misrepresentation. Our review of the agreement does not reveal any language that prohibited the insurer from defending against the federal action or moving for summary judgment in that case. Moreover, the record does not reveal any mutual mistake of fact regarding the agreement, nor does the plaintiff point to a material factual mistake that was shared by all parties. The plaintiffs argument focuses on the insurer’s defense tactics in the federal action, but the propriety of the agreement is not dependent on what occurred subsequently in the federal court after the parties had entered into and received the commissioner’s approval of the terms of the agreement. At the time of the acceptance of the agreement, the terms were known and approved by all parties and the commissioner, and none of the terms barred further proceedings in the federal action. We conclude, therefore, that the board properly affirmed the commissioner’s decision to deny the plaintiffs motion to open and set aside the agreement.

II

The plaintiff also claims that the board improperly affirmed the decision of the commissioner denying the plaintiffs motion to correct the commissioner’s findings in his June 8,2010 denial of the plaintiffs motion to open and set aside the parties’ agreement. We do not agree.

“It is the quintessential function of the finder of fact to reject or accept evidence and to believe or disbelieve any expert testimony.” (Internal quotation marks omitted.) Chesler v. Derby, 96 Conn. App. 207, 218, 899 A.2d 624, cert. denied, 280 Conn. 909, 907 A.2d 88 (2006). “We will not change the finding of the commissioner unless the record discloses that the finding includes facts found without evidence or fails to include material facts which are admitted or undisputed. ... It [is] the commissioner’s function to find the facts and determine the credibility of witnesses . . . and a fact is not admitted or undisputed merely because it is uncontradicted. ... A material fact is one that will affect the outcome of the case. . . . Thus, a motion to correct is properly denied when the additional findings sought by the mov-ant would not change the outcome of the case.” (Citation omitted; internal quotation marks omitted.) Testone v. C. R. Gibson Co., 114 Conn. App. 210, 222, 969 A.2d 179, cert. denied, 292 Conn. 914, 973 A.2d 663 (2009).

In this case, the plaintiff requested that fifty new or corrected findings be made to the commissioner’s June 8, 2010 denial of the plaintiffs motion to open and set aside the agreement. The commissioner denied the motion in its entirety, and the board affirmed that decision. In the present appeal, the plaintiff does not set forth which of his proposed findings the commissioner improperly denied, nor does he cite to any part of the record that might support his contention that some or all of the commissioner’s findings were improper or unsupported. Accordingly, we conclude that the board properly affirmed the commissioner’s denial of the plaintiffs motion to correct.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       In its memorandum of decision, the board, after analyzing the plaintiffs claims on their merits, held that it found no error in the commissioner’s decisions and, therefore, affirmed the finding and denial of the commissioner. There is no dispute that the board analyzed and ruled on the merits of the plaintiffs appeal and that it affirmed the decisions of the commissioner, who ruled on the merits of the plaintiffs motions. In addition to affirming the decisions of the commissioner, however, the board also stated that the plaintiffs appeal was dismissed. We conclude that this language was used in error. The fact is that the board’s substantive determination did not result in the dismissal of the appeal; the board ruled on its merits and affirmed the decisions of the commissioner, denying the plaintiffs motions. See generally State v. Taylor, 91 Conn. App. 788, 791 n.3, 882 A.2d 682 (2005) (“There is always a practical difference between [a denial and a dismissal] . . . because one requires a review on the merits and the other does not. Just because a review on the merits does not support the appellant is no reason to conclude that the right to review and the review itself eliminate any difference between a denial and a dismissal.”), cert. denied, 276 Conn. 928, 889 A.2d 819 (2005).

       Also named as a defendant is Arrowpoint Capital Corporation, formerly known as Royal & SunAlliance Personal Insurance Company, the insurer of A.V. Tuchy, Inc. For convenience, however, we refer to A.V. Tuchy, Inc., as the defendant throughout this opinion.

       We note that the plaintiff did not provide us with a copy of the December 17, 2010 transcript of the board hearing. We conclude, however, that the transcript of that hearing is not necessary to our resolution of the plaintiffs appeal. We have been provided with a copy of the January 5, 2010 transcript of the hearing before the commissioner.

       “A stipulation is a compromise and release type of settlement similar to settlements in civil personal injury cases where a claim is settled with a lump sum payment accompanied by a release of the adverse party from further liability. . . . Although the [Workers’ Compensation Act (act), General Statutes § 31-275 et seq.] does not explicitly provide for this type of settlement, we have consistently upheld the ability to compromise a compensation claim as inherent in the power to make a voluntary agreement regarding compensation. . . . There are three types of stipulations: (1) a full and final stipulation that closes all aspects of the claim whether they are for past, present or future wages and medical expenses, known and unknown; (2) a stipulation to date that is used to close out only a portion of a claim with the remainder left open or that is used to close out an entire claim but only up to a certain date; and (3) an open medical stipulation that closes all aspects of the claim except for medical expenses that are related to the accident or the disease.” (Citation omitted; internal quotation marks omitted.) Rodriguez v. State, 76 Conn. App. 614, 616 n.2, 820 A.2d 1097 (2003).
      “[AJpproval of ... a stipulation by the commissioner is not an automatic process. It is his function and duty to examine all the facts with care before entering an award, and this is particularly true when the stipulation presented provides for a complete release of all claims under the [act].” (Internal quotation marks omitted.) Id., 616 n.4.

       We note that the commissioner incorrectly referred to this motion as a motion to dismiss.

       The commissioner incorrectly stated that the federal court dismissed the plaintiffs remaining claims. The federal court actually granted summary judgment on these counts of the complaint.

       General Statutes § 31-315 provides in relevant part: “Any award of, or voluntary agreement concerning, compensation made under the provisions of this chapter . . . shall be subject to modification in accordance with the procedure for original determinations, upon the request of either party . . . whenever it appears to the compensation commissioner, after notice and hearing thereon, that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or that changed conditions of fact have arisen which necessitate a change of such agreement, award or transfer in order properly to carry out the spirit of this chapter. The commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court. The compensation commissioner shall retain jurisdiction over claims for compensation, awards and voluntary agreements, for any proper action thereon, during the whole compensation period applicable to the injury in question.”

       The parties, the commissioner and the board improperly used the term “motion to reopen.” We -note, as we have previously, that because the decision of the commissioner never had been opened after having been rendered, the appropriate term is a motion to open. See Rodriguez v. State, 76 Conn. App. 614, 617 n.5, 820 A.2d 1097 (2003).


author: ESPINOSA, J.

text:
    ANN RYAN v. WALTER VERA
    (AC 32890)
    Bear, Espinosa and Pellegrino, Js.

      Argued February 7 —
    officially released May 29, 2012

      Marianne Charles, for the appellant (defendant).

      Simon Sumberg, for the appellee (plaintiff).
   Opinion

ESPINOSA, J.

The defendant, Walter Vera, appeals from the judgment of the trial court denying his post-judgment motion to open and vacate its order finding him in contempt for failure to comply with an agreement entered into by him with the plaintiff, Ann Ryan, in connection with the underlying judgment dissolving their marriage. On appeal, the defendant claims that the trial court abused its discretion in denying his motion to open and vacate the order finding him in contempt. We affirm the judgment of the trial court.

The following undisputed facts and procedural history are relevant to our consideration of this appeal. The parties’ marriage was dissolved on March 1, 2006. The judgment dissolving the marriage incorporated by reference a separation agreement entered into by the parties. Under this agreement, the defendant would retain ownership of the marital residence, which is located in New York. The agreement provided that the defendant would pay the plaintiff $50,000, and, in consideration for this payment, the plaintiff would transfer by quitclaim deed her interest in the marital residence to the defendant. Furthermore, under the agreement, the defendant would be responsible for all costs of ownership and would refinance the marital residence within sixty days of the dissolution judgment in order to remove the plaintiffs name from the mortgage and the promissory note.

The defendant paid the plaintiff $50,000 on March 1, 2006, the date of the dissolution judgment. On August 22, 2006, the plaintiff filed a motion for contempt on the basis of the defendant’s failure to refinance the marital residence and remove her name from the mortgage and the promissory note. The court entered an order by agreement of the parties that provided that the plaintiff would be reimbursed $2922.66 for paying the August, 2006 mortgage payment, $1500 in attorney’s fees and $200 in costs. Additionally, the agreement provided that the defendant would have until November 1, 2006, to comply with the dissolution judgment by refinancing or selling the marital residence. Under the agreement, if the defendant failed to sell the residence by December 1, 2006, the plaintiff could undertake the obligation to sell it, and she would be entitled to a certain percentage of the sales proceeds. The plaintiff filed a second motion for contempt on September 13, 2007, alleging that the defendant had interfered with her efforts to sell the marital residence. On December 10, 2007, the court granted that motion and ordered the defendant to sign all of the documents necessary to list the marital residence for sale.

The plaintiff filed the motion for contempt that is the basis of this appeal on March 15, 2010. The motion alleged that the defendant continued to refuse to cooperate with the sale of the marital residence. On March 15, 2010, the court held a hearing on the motion. The defendant had proper notice of the hearing, but, for reasons not detailed at any point in the record, he did not attend. At the conclusion of the hearing, the court found the defendant in contempt for refusing to sign the listing documents. The court ordered the transfer of the title to the marital residence to the plaintiff so that she could effectuate the sale of the property without the defendant’s interference. Additionally, the court ordered that the plaintiff would receive the first $50,000 of the proceeds from the sale of the property, and the defendant would receive the remainder.

On July 12,2010, the defendant filed a motion to open and vacate the March 15, 2010 judgment. The court denied this motion on September 3,2010. On September 21, 2010, the defendant filed a motion for articulation and a motion to reargue the denial of his motion to open. On September 27, 2010, the court granted the defendant’s motion to reargue and issued the following articulation regarding its denial of the motion to open: “Since the defendant gave no explanation for his failure to appear at the March 15, 2010 hearing, the court felt [that] the defendant failed to make allegations requiring an opening of the judgment. The court feels the defendant has made sufficient allegations for a reargument.”

The court heard argument on the defendant’s motion to open on October 28, 2010. At the conclusion of the hearing, the court vacated that portion of its March 15, 2010 judgment awarding the plaintiff the first $50,000 of any proceeds from the sale of the marital property, because the defendant already had made this $50,000 payment to the plaintiff. The court left all other aspects of the judgment intact. The defendant filed the present appeal on November 15, 2010.

On appeal, the defendant claims that the trial court abused its discretion in denying his motion to open and vacate its March 15, 2010 judgment finding him in contempt. He argues that he satisfied his burden under the two part test for opening a judgment and that, at the October 28, 2010 hearing, the court denied him the opportunity to present evidence demonstrating why the judgment should be opened. We disagree.

“The denial of a motion to open is an appealable final judgment. . . . Although a motion to open can be filed within four months of a judgment . . . the filing of such a motion does not extend the appeal period for challenging the merits of the underlying judgment unless filed within the [twenty day period provided by Practice Book § 63-1]. . . . When a motion to open is filed more than twenty days after the judgment, the appeal from the denial of that motion can test only whether the trial court abused its discretion in failing to open the judgment and not the propriety of the merits of the underlying judgment. . . . This is so because otherwise the same issues that could have been resolved if timely raised would nevertheless be resolved, which would, in effect, extend the time to appeal.” (Citation omitted; internal quotation marks omitted.) Worth v. Korta, 132 Conn. App. 154, 158-59, 31 A.3d 804 (2011), cert. denied, 304 Conn. 905, 38 A.3d 1201 (2012).

The following additional procedural history is relevant to our consideration of the defendant’s claims. In his preliminary statement of issues filed with this court, the defendant identified ten separate issues on appeal. Essentially, the defendant claimed that the court abused its discretion in rendering the March 15, 2010 judgment and in denying his subsequent motion to open and vacate that judgment. On November 24, 2010, the plaintiff filed a motion to dismiss the appeal as untimely and moot. Because the defendant filed his motion to open on July 12, 2010, more than twenty days after the March 15, 2010 judgment, this court granted the plaintiffs motion to dismiss the appeal except as to the portion of the appeal challenging the denial of the defendant’s motion to open. Our review;, therefore, is limited to whether the court abused its discretion in denying the defendant’s motion to open.

“The court’s denial of the plaintiffs motion to open cannot be held to be an abuse of discretion if it appears that the plaintiff has not been prevented from prosecuting the claim by mistake, accident, or other reasonable cause. ... In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.” (Internal quotation marks omitted.) Id., 160.

General Statutes § 52-212 (a) provides: “Any judgment rendered or decree passed upon a default or non-suit in the Superior Court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket, on such terms in respect to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.”

We conclude that the court did not abuse its discretion in denying the defendant’s motion to open. The defendant did not represent to the court that he was prevented by mistake, accident or other reasonable cause from attending the March 15, 2010 hearing. To the contrary, he has provided no reason whatsoever explaining why he did not attend that hearing. The court, in its September 27,2010 articulation of its denial of the motion to open, expressly relied on the defendant’s failure to show reasonable cause for his absence: “Since the defendant gave no explanation for his failure to appear at the March 15, 2010 hearing, the court felt [that] the defendant failed to make allegations requiring an opening of the judgment.” Because the defendant failed to show any reasonable cause for not attending the March 15, 2010 hearing, the court did not abuse its discretion in denying the defendant’s motion to open.

Furthermore, we are not persuaded by the defendant’s argument that the court denied him the opportunity at the October 28,2010 hearing to present evidence that would have explained why he did not attend the March 15,2010 hearing. At the beginning of the hearing, the following colloquy between the court and counsel for the defendant occurred:

“The Court: Okay. Are you planning to put on some evidence?
“[The Defendant’s Counsel]: Yes, Your Honor, I believe this — just so the court is aware this hearing may take more than an hour. I’m not really sure how much time the court is giving us to — to present our evidence.”

The defendant did not raise the issue again, however, and the court at no time ruled that it would not hear any evidence. On this record, we cannot conclude that the court prevented the defendant from presenting evidence that would have demonstrated why he did not attend the March 15, 2010 hearing. The defendant had the opportunity to present the court with such evidence, but he failed to do so.

The judgment is affirmed.

In this opinion the other judges concurred.

       See Tsitaridis v. Tsitaridis, 100 Conn. App. 115, 119, 916 A.2d 877 (2007) (“[General Statutes §] 52-212 requires a party moving for the opening of a judgment to make a two part showing that: [1] a good defense existed at the time an adverse judgment was rendered; and [2] the defense was not at that time raised by reason of mistake, accident or other reasonable cause” [internal quotation marks omitted]).


author: Per Curiam.

text:
    CHRISTOPHER COUGHLIN v. VICTORIA KOCH ET AL.
    (AC 33407)
    Lavine, Bear and Sheldon, Js.
    Argued April 9 —
    officially released May 1, 2012
   Per Curiam.

The judgment is affirmed.


text:
    EDGAR TATUM v. COMMISSIONER OF CORRECTION
    (AC 32198)
    Alvord, Espinosa and West, Js.
    Argued April 12 —
    officially released May 1, 2012
   Per Curiam.

The appeal is dismissed.


text:
    CARL ALEXANDER v. COMMISSIONER OF CORRECTION
    (AC 33655)
    DiPentima, C. J., and Gruendel and Sheldon, Js.
    Submitted on briefs April 13 —
    officially released May 1, 2012
   Per Curiam.

The judgment is affirmed.


text:
    LEONARD BEST v. COMMISSIONER OF CORRECTION
    (AC 33306)
    Lavine, Robinson and Alvord, Js.
    Submitted on briefs April 13 —
    officially released May 1, 2012
   Per Curiam.

The judgment is affirmed.


text:
    MARJORIE A. COBLE v. BOARD OF EDUCATION OF THE CITY OF BRIDGEPORT
    (AC 33081)
    Espinosa, Sheldon and Bishop, Js.
    Argued April 17-
    Officially released May 8, 2012
   Per Curiam.

The judgment is affirmed.


text:
    JOANN O’BARA v. KENNETH S. O’BARA
    (AC 33308)
    Beach, Alvord and Schaller, Js.
    Argued April 19 —
    officially released May 8, 2012
   Per Curiam.

The judgment is affirmed.


text:
    BOBBY SULLIVAN v. COMMISSIONER OF CORRECTION
    (AC 32659)
    Beach, Alvord and Bear, Js.
    Argued April 23 —
    officially released May 15, 2012
   Per Curiam.

The judgment is affirmed.


text:
    WELLS FARGO BANK MINNESOTA, N.A. v. STEVEN RUSSO ET AL.
    (AC 34026)
    Lavine, Robinson and Lavery, Js.
    Argued April 23 —
    officially released May 15, 2012
   Per Curiam.

The judgment is affirmed and the case is remanded for the purpose of setting a new sale date.