author: SHEA, J.

text:
    CHARLES GATTONI ET AL. v. JOHN ZACCARO ET AL.
    (AC 18230)
    O’Connell, C. J., and Lavery and Shea, Js.

      Argued November 6, 1998
    officially released March 16, 1999

      Robert K. Walsh, for the appellants (plaintiffs).

      James A. Wade, with whom was Nathan A. Olin, for the appellees (defendants).
   Opinion

SHEA, J.

The plaintiffs, Charles Gattoni and North Stonington Associates, Inc. (NSA), a Connecticut corporation, appeal from the judgment of the trial court ordering them to restore title to certain real property to the defendant North Stonington Development Associates (NSDA), a Connecticut limited liability company. The plaintiff Gattoni also appeals from a subsequent judgment finding him in contempt and imposing sanctions for his noncompliance with the previous order concerning the return of the land to NSDA. We conclude that the trial court properly issued the injunction, but that the injunction must be treated as temporary, intended to restore the status quo ante litem, rather than permanent, because the court had no jurisdiction to issue a permanent injunction before the pleadings were closed. We reverse the judgment of contempt, however, because the court failed to hold a hearing on the defendants’ motion for contempt before rendering judgment thereon.

In 1992, Charles Gattoni and John Zaccaro orally agreed to construct and operate a 400 room hotel and convention center in North Stonington, near the Fox-woods Casino. Zaccaro was to provide the funding and Gattoni was to obtain all the necessary zone changes and approvals for the project. Zaccaro paid the purchase price of $684,000 for the two parcels of land to be used for the hotel. After several intervening transfers, the title to both parcels was acquired by NSDA, in which Zaccaro held a 51 percent interest and A & C Realty Trust, of which Gattoni was a trustee, held the minority interest.

On August 28, 1996, Zaccaro told Gattoni that he was not satisfied with the work Gattoni had done in developing the land owned by NSDA for the hotel and discharged him as a manager of the project. Later, Zac-caro informed Gattoni that his interest in NSDA was being significantly reduced. On September 9,1996, Gat-toni, purporting to be a managing member of NSDA, executed a quitclaim deed conveying NSDA’s principal asset, the land to be used for the proposed hotel, to the plaintiff NSA, a corporation in which Gattoni owned 50 percent of the shares. Gattoni claimed that he took this action because he feared that Zaccaro would transfer the land to some other entity in which A & C Realty Trust held no interest. The deed from NSDA to NSA was not recorded until May 27,1997, and no conveyance tax was paid with respect to the transfer.

By a complaint dated May 27, 1997, the plaintiffs commenced this action and filed a lis pendens on the land records concerning the land deeded to NSA. The complaint alleged that the defendant Zaccaro had breached his agreement with Gattoni concerning the purchase and development of the land transferred to NSA by discharging Gattoni and by attempting to terminate Gattoni’s interest in NSDA. The plaintiffs sought a judgment determining the rights of the parties to the land held by NSA and settling title thereto.

The defendants filed no answer to the complaint but responded by filing a “verified motion for injunction.” The motion sought to compel Gattoni and NSA to return to NSDA the land then held in the name of NSA. The defendants alleged that Gattoni had no authority to execute the deed granting the land to NSA. The defendants claimed that they had no adequate remedy at law and that, because of Gattoni’s actions, they were unable to proceed with the construction of the hotel and conference center as planned and risked losing their substantial investment.

Prior to commencement of the hearing on the defendants’ motion for an injunction, the plaintiffs filed a motion to withdraw the action. They claimed a right to withdraw without the trial court’s permission pursuant to General Statutes § 52-80. Because there was a prior proceeding involving removal of the lis pendens filed by the plaintiffs, the court questioned the applicability of that statute, but, nevertheless, granted the plaintiffs’ alternative motion for permission to withdraw the action.

The trial court heard the defendants’ motion for an injunction and determined that the only issue to be resolved was whether Gattoni was authorized to execute the deed on behalf of NSDA transferring the land to NSA. After the presentation of evidence by the parties, the court concluded that Gattoni lacked authority to execute that deed and had improperly converted the property. The court ordered that the property be returned to NSDA immediately so that the defendants would not suffer further financial loss. A motion filed by the plaintiffs to stay the execution of the judgment was denied because of the hardship that a delay in proceeding with the project would impose on the defendants. This court dismissed a motion for review filed by the plaintiffs on procedural grounds.

On March 19, 1998, the defendants filed a motion for contempt and sanctions against Gattoni for his failure to obey the order issued on March 3, 1998, to return the land he had wrongfully conveyed to NSA. In a memorandum of decision filed on March 30, 1998, the court, without holding a hearing on the motion, found that Gattoni had failed to obey the mandatory injunction that was issued and, therefore, concluded that he was in contempt of court. The court ordered that he pay $250 per day for each day he refused to comply with the order to return the land to NSDA, retroactive to the effective date of the order, and also awarded counsel fees incurred by the defendants related to the contempt motion. Gattoni, as president of NSA, executed a quitclaim deed, dated March 25, 1998, to NSDA of the land for the hotel, which was received by the defendants on March 30, 1998.

The plaintiffs claim that the judgments should be reversed on several grounds: (1) the trial court had no jurisdiction to proceed with a hearing on the defendants’ motion for an injunction after the plaintiffs withdrew their complaint; (2) the court lacked authority to entertain the motion 1'or an injunction at a short calendar proceeding before the plaintiffs closed the pleadings by responding to the allegations of the motion; (3) the court incorrectly confined the evidence to the single issue of whether Gattoni was authorized to execute the deed transferring the land from NSDA to NSA, thereby excluding evidence offered by the plaintiffs to support their defense of unclean hands; (4) the court incorrectly admitted into evidence uncertified and unauthenticated photocopies of Gattoni’s deposition that were taken in another action between the parties; and (5) the court improperly decided the motion for contempt without holding a proper hearing thereon. The plaintiffs raise no claim that the evidence was insufficient to sustain the trial court’s conclusion that Gattoni was not authorized to execute a deed on behalf of NSDA.

I

There is no merit to the claim that the trial court lost jurisdiction over this case when it granted the plaintiffs’ motion to withdraw their complaint. Prior to the withdrawal, the defendants filed their motion for injunctive relief. The trial court properly treated that motion as a counterclaim. “The term [counterclaim] itself is a general and comprehensive one, naturally including within its meaning all manner of permissible counter-demands.” Boothe v. Armstrong, 76 Conn. 530, 532, 57 A. 173 (1904). “[T]he word ‘counterclaim’ was intended to be the generic term for all cross demands other than setoffs, whether in law or in equity.” Lescoe v. Kinstler, 136 Conn. 253, 255, 70 A.2d 131 (1949). Under Rule 13 (a) of the Federal Rules of Civil Procedure, the defendants’ claim for an injunction would qualify as a compulsory counterclaim, since “it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim . . . .”

“The withdrawal of an action after a counterclaim, whether for legal or equitable relief, has been filed therein shall not impair the right of the defendant to prosecute such counterclaim as fully as if said action had not been withdrawn, provided that the defendant shall, if required by the judicial authority, give bond to pay costs as in civil actions.” Practice Book § 10-55. Even before the rule, it was recognized that a court may exercise its jurisdiction after a case has been withdrawn. “There is no reason why the court has not jurisdiction upon a proper showing to restore to the active docket a case which has been voluntarily withdrawn, just as it can open a judgment or restore to the docket a case which has been erased.” Lusas v. St. Patrick’s Roman Catholic Church Corp., 123 Conn. 166, 170, 193 A. 204 (1937). Accordingly, in this case, the trial court correctly permitted the defendants to prosecute their counterclaim.

II

We agree with the plaintiffs that the trial court lacked jurisdiction to issue a permanent injunction requiring them to return to NSDA the land they wrongfully obtained because the pleadings were not closed on the allegations of the defendants’ motion for an injunction. The motion alleges the agreement between Gattoni and Zaccaro to purchase land for the development of a hotel and conference center, the formation of NSDA in which Zaccaro held the majority interest, the terms of the operating agreement for NSDA pertinent to Zaccaro’s authority to discharge Gattoni, and Gattoni’s subsequent transfer of the land for the hotel from NSDA to NSA. Although the defendants could not have filed an answer to the complaint after it was withdrawn, the plaintiffs were obliged to respond to the factual allegations of the motion or suffer a default before the issues could be resolved by a permanent injunction.

“The fact that the pleadings were not closed restricts the authority of the trial court to render permanent judgments on pending claims.” Doublewal Corp. v. Toffolon, 195 Conn. 384, 391, 488 A.2d 444 (1985). “None of these determinations [injunctions or declaratory judgments] can properly be made while the pleadings are still open.” Id., 392. “A trial court may not sua sponte transform applications that request temporary injunctions into proceedings on the merits of issuance or denial of permanent injunctions.” Id., 393. “According to Doublewal, although under certain circumstances, a temporary injunction may be transformed into a permanent injunction with the consent of the parties . . . the trial court does not have the authority to render ‘permanent judgments on pending claims’ where the pleadings are not yet closed.” (Citations omitted.) Ebenstein & Ebenstein, P.C. v. Smith Thibault Corp., 20 Conn. App. 23, 26, 563 A.2d 1044 (1989).

The defendants’ “verified motion for injunction” does not specify whether the injunction should be temporary or permanent. Entitling it a “verified” motion indicates that only a temporary injunction was originally sought, as no verification is required for a permanent injunction. General Statutes § 52-473 (b). At the hearing, however, the trial court opined that it had to be a permanent injunction because the relief sought, conveyance of the land back to NSDA, could not be granted temporarily and then made permanent later. The memorandum of decision does not state whether the injunction ordered was temporary or permanent. It does, however, state that “[t]he purpose of such an injunction is to restore the status quo.” That purpose is ordinarily achieved by a temporary injunction.

If the court intended to order a permanent injunction, it clearly lacked jurisdiction to do so because the pleadings were still open. Doublewal Corp. v. Toffolon, supra, 195 Conn. 391. That infirmity in the court’s jurisdiction, however, did not impair its authority to issue a temporary injunction. It is a well established principle that “every presumption favoring jurisdiction [of the court] should be indulged.” Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 420-21 n.3, 426 A.2d 1324 (1980); Tuccio v. Zehrung, 164 Conn. 231, 232, 319 A.2d 406 (1973). We conclude that the injunction issued by the court compelling the plaintiffs to return the land in dispute to NSDA may be treated as a temporary injunction, despite the court’s remarks at the hearing about issuing a permanent injunction.

The issuance of a temporary injunction, however, does not conclude this litigation. Further proceedings in the trial court, after the pleadings have been closed, are necessary for the purpose of obtaining a permanent injunction, unless the issues involved become moot.

III

Our conclusion that the injunction ordered by the trial court must be deemed temporary because of the lack of jurisdiction to issue a permanent injunction limits our consideration of the remaining issues raised in this appeal. Unless a statutory exception is applicable, “decisions either granting or denying temporary injunctions are not final judgments and are therefore not immediately appealable. ” Doublewal Corp. v. Toffolon, supra, 195 Conn. 389. Accordingly, we do not address the claims concerning the court’s ruling limiting the issue at the injunction hearing to the authority of Gattoni to execute the deed transferring the land in dispute from NSDA to NSA, the exclusion of evidence to prove unclean hands or the admission of uncertified copies of Gattoni’s deposition. Those issues are outside the scope of our limited jurisdiction in this appeal.

IV

The remaining issue involves the plaintiff Gattoni’s appeal from the judgment finding him in contempt and the penalty imposed on him for failure to comply with the order to return the land to NSDA. That appeal was filed separately from the appeal from the judgment granting the injunction and the defendant has amended his preliminary statement of issues accordingly.

On March 19, 1998, the defendants filed a motion to hold Gattoni in contempt and to impose sanctions for his failure to return immediately to NSDA the land that he had transferred to NSA, as directed in the memorandum of decision filed on March 30, 1998. The trial court had denied the plaintiffs’ motion for a stay of execution of the injunction on the same date that it ordered the return of the land. The plaintiffs filed a motion for review of the denial of the stay with this court, but the motion was dismissed. That motion was not filed within the ten days allowed for such a motion by Practice Book § 66-6, and the plaintiffs did not file their appeal from the judgment issuing the injunction before the motion for review was filed. Notice of the dismissal was sent out on April 23, 1998.

The record does not indicate that the trial court held a hearing on the defendant’s contempt motion before granting it. On March 30, 1998, the trial court filed a memorandum of decision finding that Gattoni “failed to obey the court’s order to return the disputed property to NSDA, and therefore finds that he is in contempt of court.” In addition, the court ordered that Gattoni “pay $250 for each day that he refuses to return the disputed property retroactively to the date of the court’s order, March 3, 1998,” and that he also pay the defendants’ costs and attorney’s fees for the contempt motion.

We agree with the plaintiffs that Gattoni was entitled to a hearing or trial before the trial court held him in contempt or imposed sanctions on him. Although it is clear that Gattoni did not comply with the injunction issued on March 3, 1998, ordering him to return the land involved to NSDA immediately, the failure to obey an injunction must be wilful to support a finding of contempt. “The inability of a party to obey an order of the court, without fault on his part, is a good defense to the charge of contempt.” Mallory v. Mallory, 207 Conn. 48, 57, 539 A.2d 995 (1988). A judgment of contempt cannot be based on representations of counsel in a motion, but must be supported by evidence produced in court at a proper proceeding. The defendants do not claim that Gattoni’s failure to comply with the injunction was a criminal contempt that occurred in the presence of the court. In such a proceeding, a court can find a party in contempt on the basis of its own observations. In this case, only a civil or indirect contempt is involved. “It is beyond question that ‘due process of law . . . requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation.’ ” Cologne v. Westfarms Associates, 197 Conn. 141, 150, 496 A.2d 476 (1985). “[T]he evidence necessary to constitute the alleged contempt must have been established by sufficient proof in the trial court.” Potter v. Board of Selectmen, 174 Conn. 195, 197, 384 A.2d 369 (1978). “[T]he court had no power to proceed to a trial and judgment of condemnation in the absence of the accused.” Welch v. Barber, 52 Conn. 147, 157 (1884).

The defendants claim that any deficiencies in the contempt order were cured at a later proceeding before the trial court, which the parties attended represented by counsel. The defendants filed another motion for contempt and sanctions on March 19, 1998, because the plaintiffs at that time had not returned the land to NSDA pursuant to the March 3, 1998 order. On May 11, 1998, when the defendants’ second motion was heard, the plaintiffs had returned the land to NSDA as ordered and had filed both the appeal from the judgment granting the injunction and the appeal from the judgment of contempt.

At the outset of the May 11 hearing, the plaintiffs requested to be heard on a motion they filed for the purpose of staying the March 30, 1998 judgment of contempt and sanctions order, from which an appeal was filed on April 17, 1998. After hearing testimony about Gattoni’s finances, the court granted a stay of the contempt and sanctions judgment without requiring a bond. With respect to the motion for sanctions and attorney’s fees, the court ordered Gattoni to pay $6750 in sanctions for the delay of twenty-seven days in delivering a properly executed deed of the land involved from NSA to NSDA and also ordered him to pay $7024 for attorney’s fees and $53 for costs. The court granted stays of execution pending appeal for each of those judgments.

During the proceeding on May 11,1998, the trial court asked the plaintiffs’ attorney if he wanted a hearing as to whether his client should be held in contempt. The attorney responded that the matter was on appeal. The court inquired whether he was seeking a further hearing in the trial court as to whether the contempt order should have issued, to which counsel answered, “No.”

The defendants contend that the trial court’s offer of a hearing during the May 11 proceeding, which the plaintiffs refused, cures the infirmity of the lack of a hearing before the contempt and sanctions judgment of March 30. We are not persuaded that the flaw in the judgment finding Gattoni in contempt and ordering sanctions could have been so easily rectified. The court did not offer to open that judgment. The plaintiffs’ attorney might well have been concerned about the difficulty of persuading a trier of fact to reverse conclusions that were reached and publicly announced in the earlier proceeding. We conclude that the failure to hold a hearing before finding Gattoni in contempt and ordering the sanctions to be imposed for failure to comply with the injunction requires that we reverse that judgment. That conclusion also makes it necessary for us to reverse the judgment resulting from the May 11 proceeding, in which the court ordered Gattoni to pay $6750 as sanctions and $7077 as attorney’s fees and costs.

The judgment of March 3, 1998, issuing a temporary injunction ordering the return of the land in dispute to the defendant North Stonington Development Associates is affirmed. The judgment of March 30,1998, finding the named plaintiff in contempt and ordering sanctions and attorney’s fees is reversed. The judgment of May 11, 1998, ordering the named plaintiff to pay sanctions and attorney’s fees is also reversed and the case is remanded for further proceedings to determine whether the named plaintiff should be found in contempt for violating the injunction and whether to impose sanctions for any such violation.

In this opinion the other judges concurred.

       Zaccaro also paid an additional $30,000 to acquire the interest of the holder of options on the two properties.

       The lis pendens was removed in a prior court proceeding.

       General Statutes § 52-80 provides: “If the plaintiff, in any action returned to court and entered in the docket, does not, on or before the opening of the court on the second day thereof, appear by himself or attorney to prosecute such action, he shall be nonsuited, in which case the defendant, if he appears, shall recover costs from the plaintiff. The plaintiff may withdraw any action so returned to and entered in the docket of any court, before the commencement of a hearing on the merits thereof. After the commencement of a hearing on an issue of fact in any such action, the plaintiff may withdraw such action, or any other party thereto may withdraw any cross complaint or counterclaim filed therein by him, only by leave of court for cause shown.”

       A right of setoff may now be asserted in response to a complaint just as a counterclaim may be so pleaded. Practice Book § 10-54.

       Some of the issues raised in this litigation are also the subject of an action brought by Gattoni that is still pending in the Superior Court for the judicial district of New Haven.

       The plaintiffs did not file an appeal from the May 11, 1998 judgment. Nevertheless, our conclusion that the March 30, 1998 judgment finding the named plaintiff in contempt and imposing sanctions must be reversed also requires that we reverse, sua sponte, the May 11, 1998 judgment.


source: Caselaw Access Project

author: SPEAR, J.

license: Public Domain

text:
    GARY C. MOORE v. CONTINENTAL CASUALTY COMPANY
    (AC 17682)
    Schaller, Spear and Healey, Js.
    Argued January 21
    officially released March 16, 1999

      Gerald T. Giaimo, for the appellant (plaintiff).

      Kerry R. Callahan, with whom, on the brief, was James N. Tallberg, for the appellee (defendant).
   Opinion

SPEAR, J.

The plaintiff, Gary C. Moore, appeals from the summary judgment rendered in favor of the defendant, Continental Casualty Company (Continental). The trial court held that, under the terms of a homeowner’s insurance policy, Continental owed no duty to defend the underlying lawsuit brought against Moore. The plaintiff claims that the trial court improperly concluded that (1) a claim of emotional distress is not a claim for bodily injury under the terms of the homeowner’s insurance policy, (2) the term “bodily harm” is not ambiguous as a matter of law and (3) the exclusions for “expected or intended” injuries contained in the insurance policy bar coverage. We affirm the judgment of the trial court.

The underlying facts are undisputed. The plaintiffs sister, Gail Standish, brought an action against the plaintiff by way of a complaint that alleged conversion, fraud, intentional infliction of emotional distress and negligent infliction of emotional distress. Standish is a joint owner of property with her mother, Coral Moore. She alleged that the plaintiff obtained a power of attorney from Coral Moore and herself, and together with attorney Richard Stapleton obtained a $150,000 line of credit that was secured by the jointly owned property. Standish alleged that she suffered financial loss in the amount of $150,000 and also suffered emotional distress, stress and anxiety as a result of her financial loss.

The plaintiff instituted a declaratory judgment action against Continental in which he alleged that Continental owed a duty to defend him against the suit filed by Standish. The trial court rejected the claim and granted the defendant’s motion for summary judgment. This appeal followed.

I

The plaintiff first claims that the trial court improperly found that an allegation of emotional injury arising from economic loss did not constitute “bodily injury” as defined by the insurance policy. We disagree.

Continental issued a homeowner’s policy to the plaintiff, which stated that Continental would defend and indemnify the plaintiff “if a claim is made or a suit is brought against you or any covered person for . . . bodily injury.” The policy defined bodily injury as “bodily harm, sickness or disease, except any communicable disease, including required care, loss of services and death resulting therefrom.”

“[A]n insurer’s duty to defend ... is determined by reference to the allegations contained in the [injured party’s] complaint. Flint v. Universal Machine Co., [238 Conn. 637, 646, 679 A.2d 929 (1996).] The duty to defend an insured arises if the complaint states a cause of action which appears on its face to be within the terms of the policy coverage. . . . Hogle v. Hogle, 167 Conn. 572, 576, 356 A.2d 172 (1975). Because [t]he duty to defend has a broader aspect than the duty to indemnify and does not depend on whether the injured party will prevail against the insured; Missionaries of the Co. of Mary, Inc. v. Aetna Casualty & Surety Co., 155 Conn. 104, 110, 230 A.2d 21 (1967); ‘[i]f an allegation of the complaint falls even possibly within the coverage, then the insurance company must defend the insured. . . . West Haven v. Commercial Union Ins. Co., 894 F.2d 540, 544 (2d Cir. 1990), quoting West Haven v. Liberty Mutual Ins. Co., 639 F. Sup. 1012, 1017 (D. Conn. 1986).” (Internal quotation marks omitted.) Imperial Casualty & Indemnity Co. v. State, 246 Conn. 313, 323-24, 714 A.2d 1230 (1998). We must examine whether the term “bodily injury” as defined by the insurance policy encompasses emotional distress.

“An insurance policy is to be interpreted by the same general rules that govern the construction of any written contract and enforced in accordance with the real intent of the parties as expressed in the language employed in the policy. Schultz v. Hartford Fire Ins. Co., 213 Conn. 696, 702, 569 A.2d 1131 (1990). ... The policy words must be accorded their natural and ordinary meaning . . . [and] any ambiguity in the terms of an insurance policy must be construed in favor of the insured because the insurance company drafted the policy. . . . Hansen v. Ohio Casualty Ins. Co., 239 Conn. 537, 542-43, 687 A.2d 1262 (1996). [T]his rule of construction favorable to the insured extends to exclusion clauses. . . . Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 770, 653 A.2d 122 (1995). Unlike certain other contracts . . . where . . . the intent of the parties and thus the meaning of the contract is a factual question subject to limited appellate review . . . construction of a contract of insurance presents a question of law . . . which this court reviews de novo. . . . Flinty. Universal Machine Co., supra, 642.” (Citations omitted; internal quotation marks omitted.) Imperial Casualty & Indemnity Co. v. State, supra, 246 Conn. 324-25.

Applying the same general rules that govern the construction of any written contract, we accord the term bodily injury its plain and ordinary meaning. Bodily injury requires some physical harm. Emotional distress, absent any physical manifestation, does not constitute “bodily harm, sickness or disease” in their plain and ordinary meanings. Therefore, the trial court correctly interpreted the term bodily injury and held that the plaintiffs allegations of emotional distress, absent any physical manifestation, did not implicate Continental’s duty to defend the plaintiff.

II

The plaintiff next claims that the term bodily injury is ambiguous and that any ambiguity must be resolved in favor of the insured. We disagree.

The term bodily injury or bodily harm is not ambiguous. Our Supreme Court has clearly distinguished emotional harm from bodily injury in the context of a cause of action for unintentional infliction of emotional distress. “In Montinieri v. Southern New England Telephone Co., [175 Conn. 337, 345, 398 A.2d 1180 (1978)], [our Supreme Court] held that a plaintiff may recover for unintentional infliction of emotional distress even if the distress does not result in subsequent bodily injury and the plaintiff was not at risk of harm from physical impact.” (Emphasis added.) Kilduff v. Adams, Inc., 219 Conn. 314, 325, 593 A.2d 478 (1991). In holding that bodily injury is not a condition precedent to maintaining a cause of action for unintentional infliction of emotional distress, our Supreme Court has, in essence, recognized that emotional distress and bodily harm are separate and distinct. Any purported ambiguity in the term bodily injury, therefore, is not sufficient to allow us to incorporate emotional distress into the definition.

III

As an alternate ground for affirmance, the defendant claims that the exclusion for expected or intended injuries bars coverage for the plaintiffs claim. Because we affirm the judgment of the trial court in concluding that the allegations of the complaint did not trigger Continental’s duty to defend the plaintiff, we need not reach this issue.

The judgment is affirmed.

In this opinion the other judges concurred.


author: SULLIVAN, J.

text:
    STEVEN C. WEYEL v. GREGORY M. CATANIA ET AL.
    (AC 17553)
    Schaller, Sullivan and Kulawiz, Js.
    Argued December 10, 1998
    officially released March 16, 1999

      Martin S. Echter, with whom was Thomas W. Ude, Jr., deputy corporation counsel, for the appellant (named defendant).

      Erskine D. McIntosh, for the appellee (plaintiff).
   Opinion

SULLIVAN, J.

The defendant, Gregory M. Catania, appeals from a judgment for the plaintiff, rendered after a bench trial. The defendant claims that the trial court improperly (1) based its decision on various erroneous factual findings, (2) denied qualified immunity to the defendant, (3) denied the defendant’s motion for recu-sal, (4) excluded from evidence part of a hospital record, (5) considered who would likely pay an adverse judgment and (6) awarded attorney’s fees that were premature and excessive. We affirm the judgment of the trial court.

The trial court found the following facts. On August 21, 1993, New Haven police officer Allan Turechek and the defendant were conducting a stakeout in an unmarked police car for a suspect in the Westville section of New Haven. At approximately 10:45 p.m., the plaintiff and his girlfriend, Jessica Frisco, were driving through the area. After they argued, Frisco stopped the car and ordered the plaintiff to get out. The plaintiff walked toward the unmarked police car. Mistakenly believing the plaintiff to be the suspect, Turechek and the defendant identified themselves, ordered the plaintiff to stand against a fence and conducted a patdown search for weapons. They then checked his identification and determined that he was not the suspect. At some point during this encounter, the plaintiff told the police that he was walking on the street because he and Frisco had had an argument. The officers told the plaintiff that he could return to Frisco’s car, and Ture-chek remarked that the plaintiff and Frisco had “fucked up” the stakeout. One of the police officers then told the plaintiff to run. As the plaintiff continued to walk toward the car, the officers followed him, ostensibly to investigate possible domestic violence. Turechek stood on the driver’s side of the car, and the defendant and the plaintiff stood on the passenger side. The defendant testified that the plaintiff was “somewhat arrogant” and had the smell of liquor on his breath. As the plaintiff put his right hand on the door handle and turned away from the defendant, the defendant pushed him into the rear passenger side window. The plaintiff suffered injuries to his shoulder, arm and head. Turechek and the defendant called their supervisor, Sergeant William Tinker. After the discussion with Tinker, the plaintiff and Frisco went to the police station to report the incident but, upon finding the internal affairs office closed, proceeded to Yale-New Haven Hospital. They reported the incident the next morning to internal affairs.

The plaintiff filed suit against Turechek and the defendant, alleging violations of 42 U.S.C. § 1983, false imprisonment, intentional infliction of emotional distress and negligence. The trial court found in favor of Turechek on all charges and found the defendant liable under § 1983 for using excessive force against the plaintiff. This appeal followed.

I

The defendant first claims that the trial court rested its decision on several factual findings that were not supported by the evidence. Specifically, he asserts that the plaintiffs hospital records and the photograph of the injury contradict the plaintiffs description of the nature, extent and cause of the injuries, including the claim of a head injury. The defendant further argues that the actions of the plaintiff and Frisco immediately after the accident contradicted testimony about the nature and extent of the plaintiffs injuries, that the plaintiff and Frisco gave conflicting accounts of where they were standing and how the plaintiff was injured and that the claim that there was blood on the seat and the seat belt of the car was illogical. Additionally, the defendant argues that statements by the plaintiff and Frisco that the officers were out of control are contradicted by Frisco’s statement that the plaintiff had been out of control in the argument they had had prior to the incident. The defendant also argues that the court improperly found that the plaintiff had particles of glass lodged in his arm.

Our standard of review is well established. “In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. . . . On appeal, we will give the evidence the most favorable reasonable construction in support of the verdict to which it is entitled. ... A factual finding may be rejected by this court only if it is 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.” (Citations omitted; internal quotation marks omitted.) Murphy v. Buonato, 42 Conn. App. 239, 242, 679 A.2d 411 (1996), aff'd, 241 Conn. 319, 696 A.2d 320 (1997).

The defendant challenges the court’s determinations of the credibility of testimony and the weight of the evidence. The trial court’s findings are all supported by evidence, and we are unpersuaded that a mistake was committed. We conclude that the trial court’s factual determinations were not clearly erroneous.

II

The defendant next claims that the trial court improperly rejected his claim of qualified immunity. We disagree.

“The defense of qualified immunity shields government officials from civil liability if the official’s conduct did not violate constitutional rights that were clearly established at the pertinent time or if it was objectively reasonable for the official to believe that the conduct did not violate such rights.” (Internal quotation marks omitted.) Greenwood v. New York, 163 F.3d 119, 121-22 (2d Cir. 1998). “State courts follow federal precedent in interpreting the doctrine of qualified immunity. Martinez v. California, 444 U.S. 277, 284 n.8, 100 S. Ct. 553, 62 L. Ed. 2d 481 (1980).” Outlaw v. Meriden, 43 Conn. App. 387, 395, 682 A.2d 1112, cert. denied. 239 Conn. 946, 686 A.2d 122 (1996). “ ‘As a general rule, police officers are entitled to qualified immunity if (1) their conduct does not violate clearly established constitutional rights, or (2) it was objectively reasonable for them to believe their acts did not violate those rights.’ Oliveira v. Mayer, 23 F.3d 642, 648 (2d. Cir. 1994).” Outlaw v. Meriden, supra, 395. “[A]ll claims that law enforcement officers have used excessive force— deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard . . . .” (Emphasis in original.) Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989).

“Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it. See Terry v. Ohio, [392 U.S. 1, 22-27, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)]. Because ‘[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application,’ Bell v. Wolfish, 441 U.S. 520, 559 [99 S. Ct. 1861, 60 L. Ed. 2d 447] (1979), however, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham v. Connor, supra, 490 U.S. 396.

The defendant does not argue that his conduct, as determined by the trier of fact, was reasonable. Instead, the defendant argues that his conduct was reasonable under his version of the facts, which the trier of fact rejected. Because the court’s factual determinations were not clearly erroneous, we must accept them as the basis for the determination of reasonableness. The trial court, sitting as the trier of fact, reasonably found that the defendant pushed the plaintiff through a car window. The trial court did not find, nor did the defendant maintain, that the plaintiff had used any force against the defendant. Given these circumstances, we cannot say the trial court improperly determined that the defendant’s actions were not objectively reasonable. Therefore, we conclude that the trial court properly denied the defendant qualified immunity.

Ill

The defendant next claims that the trial judge improperly failed to recuse himself. Specifically, the defendant asserts that there was an “appearance of a conflict of interest,” that the trial judge “concluded that the filing of the posttrial motion and the motion for recusal called into question his own honesty and integrity versus the honesty and integrity of defense counsel” and that the court improperly credited the “word of a stranger” over the “sworn testimony of defense counsel despite the absence of any basis to cite counsel for contempt.” We disagree.

The procedure for moving to disqualify a judge is set out in Practice Book § 1-23, formerly § 997. “Both [an affidavit and a certificate that the motion was made in good faith] are required procedural adjuncts to a motion to recuse a judicial authority. Practice Book [§ 1-23]. Adherence to those procedures is necessary to obtain proper judicial review. State v. Weber, 6 Conn. App. 407, 412-13, 505 A.2d 1266, cert. denied, 199 Conn. 810, 508 A.2d 771 (1986).” State v. Santangelo, 205 Conn. 578, 585, 534 A.2d 1175 (1987); see also State v. Teel, 42 Conn. App. 500, 506-507, 681 A.2d 974, cert. denied, 239 Conn. 921, 682 A.2d 1012 (1996) (failure to comply with Practice Book § 997 deems record inadequate for review under first prong of Evans-Golding test). “A motion to disqualify a judicial officer because of the claimed possibility of bias is a serious matter. If counsel makes such a motion, it is not asking too much to require that he or she follow the established rules that treat it as such.” State v. Santangelo, supra, 601.

The defendant here did not satisfy the rules of practice because counsel failed to attached “a certificate of the counsel of record that the motion is made in good faith.” Furthermore, the defendant did not request a hearing to present evidence to support his request for judicial recusal. See State v. Weber, supra, 6 Conn. App. 413. Under these circumstances, we need not consider this issue and decline to do so.

Even assuming arguendo that the recusal motion was proper, we conclude that the trial court properly denied the defendant’s recusal motion. “ ‘A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned . . . .’Code of Judicial Conduct 3.C. (1); State v. Fullwood, 194 Conn. 573, 579, 484 A.2d 435 (1984). Disqualification of a trial judge is not dependent on proof of actual bias. The appearance and existence of impartiality are both essential elements of a fair trial. Cameron v. Cameron, 187 Conn. 163, 168-69, 444 A.2d 915 (1982); Postemski v. Landon, 9 Conn. App. 320, 322, 518 A.2d 674 (1986).” State v. Santangelo, supra, 205 Conn. 602.

The following additional facts are necessary for resolution of this claim. The trial judge lives in Bethany and is familiar with Nonnie’s Delicatessen, an establishment managed by Frisco and owned by her parents. The judge stated, “I am acquainted with their store, not with [Frisco’s] family.” He had shopped at the store twice before the trial and once after the trial. He did not shop there during the trial. Moreover, the judge stated on the record that he “never saw Miss Frisco” at Nonnie’s. The defendant’s brief also suggests that the judge made off-the-record remarks that indicated an improper familiarity with Nonnie’s Delicatessen. We must confine our review to the record. We find no facts in the record that would reasonably call into question the impartiality of the trial judge.

We also find no merit to the defendant’s contention that the court should have recused itself because of a bias against the defendant or defense counsel. The defendant has furnished no evidence that the court was biased in any way against the defendant. Defense counsel points to the fact that the court credited the word of a person who was not an attorney over defense counsel at a posttrial hearing. It is nonsensical to suggest that a trial court must either credit the testimony of an attorney over that of an individual who is not an attorney or face a charge of bias. No testimony bears an instant imprimatur of truth that insulates it from the scrutiny of the trier of fact. Moreover, the allegedly biased comments of the trial judge taken as a whole in their proper context do not reasonably cast doubt on the court’s impartiality. On the contrary, the trial judge’s actions were entirely proper.

IV

The defendant next claims that the trial court improperly excluded from evidence part of a hospital record indicating that the plaintiff had an odor of alcohol on his breath. To review such a claim, this court must have an adequate record before it. It is the appellant’s burden to provide an adequate record for appellate review. Practice Book § 61-10. The defendant has failed to provide us with a transcript of the court’s hearing and ruling on this matter. The defendant’s failure to provide that transcript renders this court unable to review his claim. See Tomanelli v. Tomanelli, 5 Conn. App. 149, 151, 497 A.2d 91, cert. denied, 197 Conn. 814, 499 A.2d 63 (1985).

V

The defendant next claims that the trial court improperly considered who would likely pay a judgment against the defendant in rendering its decision. Essentially, the defendant argues that General Statutes § 7-465 prevents a trier of fact from taking into consideration whether a municipality will pay an adverse judgment in the same way that evidence of liability insurance is generally not admissible in negligence actions.

We need not reach this issue because the defendant has not shown that the court considered who would pay the judgment or that any statement to that effect was made at trial. The only statement to which the defendant points was made in a posttrial hearing and is cited out of context. It is clear in the transcript that the trial court’s statement had nothing to do with the finding of liability, nor does it indicate that the court’s judgment was in any way tainted. We conclude that the trial court did not improperly consider who was likely to pay the adverse judgment.

VI

The defendant finally claims that the trial court’s award of attorney’s fees to the plaintiff was excessive and inconsistent with “relevant law and evidence.” We disagree.

A

The defendant first argues that the trial court should not have awarded attorney’s fees because the plaintiff is not a “prevailing party” within the meaning of 42 U.S.C. § 1988. Specifically, the defendant claims that the plaintiff is not a prevailing party until the judgment in his favor has been upheld on appeal. The United States Supreme Court has stated that “[ujnder our ‘generous formulation’ of the term, plaintiffs may be considered ‘prevailing parties’ for attorney’s fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” (Internal quotation marks omitted.) Farrar v. Hobby, 506 U.S. 103, 109, 113 S. Ct. 566, 121 L. Ed. 2d 494 (1992). “The definition of prevailing parties is not limited to those who obtain a favorable final judgment following a full trial. . . . Civil rights plaintiffs who gain enforceable relief through a consent decree or settlement are also entitled to attorney’s fees. . . . Moreover, a court may award attorney’s fees pendente lite to a party who has secured some relief on the merits either at trial or on appeal.” (Citations omitted.) LaRouche v. Kezer, 20 F.3d 68, 71 (2d Cir. 1994). The plaintiff in this case prevailed on the merits of his case, and the trial court properly exercised its discretion in awarding attorney’s fees. We find no merit to the defendant’s argument.

B

The defendant next argues that even if an award of attorney’s fees was proper, the amount awarded by the court was excessive.

Section 1988 leaves the setting of award amounts to the discretion of the court. “No one can state the reasonable value of legal services as a fact. He can only express his opinion. The value is based upon many considerations.” Hoenig v. Lubetkin, 137 Conn. 516, 524, 79 A.2d 278 (1951). With respect to awards pursuant to § 1988, those considerations include the rates “prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Blum v. Stenson, 465 U.S. 886, 895-96 n.11, 104 S. Ct. 1541, 79 L. Ed. 2d 891 (1984). “A court has few duties of a more delicate nature than that of fixing counsel fees. The degree of delicacy increases when the matter becomes one of review on appeal. The principle of law, which is easy to state but difficult at times to apply, is that only in case of a clear abuse of discretion by the trier may we interfere. Hayward v. Plant, 98 Conn. 374, 382, 119 A. 341 [1923]; Golstein v. Handley, 390 Ill. 118, 125, 60 N.E.2d 851 [1945]. The trier is always in a more advantageous position to evaluate the services of counsel than are we.” Hoenig v. Lubetkin, supra, 525.

The trial court in this case reached its decision after considering the submissions of both the plaintiff and the defendant as to what a reasonable fee should be. The $200 per hour award fell between the $260 per hour requested by the plaintiff and the $150 per hour limit suggested by the defendant. The trial court’s decision took into consideration the length of experience, age and expertise of the plaintiffs counsel as compared to other attorneys in the community. We cannot say that the trial court abused its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       Allan Turechek was also named as a defendant in this case. Judgment was rendered in his favor and only Gregory M. Catania has appealed. In this opinion, we refer to Catania as the defendant.

       Practice Book § 1-23 provides: "A motion to disqualify a judicial authority shall be in writing and shall be accompanied by an affidavit setting forth the facts relied upon to show the grounds for disqualification and a certificate of the counsel of record that the motion is made in good faith. The motion shall be filed no less than ten days before the time the case is called for trial or hearing, unless good cause is shown for failure to file within such time.”

       The defendant alludes to alleged off-the-record remarks made by the court at a posttrial meeting. We do not and will not consider those claims precisely because there is no record to review.

       42 U.S.C. § 1988 (b) provides in relevant part: “In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318 ... or title VI of the Civil Rights Act of 1964 . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”


text:
    STATE OF CONNECTICUT v. ALICE POMPEI
    (AC 17428)
    Lavery, Schaller and Spear, Js.

      Submitted on briefs December 7, 1998
    officially released March 16, 1999

      Alfred F. Morrocco, Jr., and Thomas W. Conlin filed a brief for the appellant (defendant).

      James E. Thomas, state’s attorney, and Lisa Her-skowitz and Brian Preleski, assistant state’s attorneys, filed a brief for the appellee (state).
   Opinion

SPEAR, J.

The defendant, Alice Pompei, appeals from the judgment of conviction, rendered after a jury trial, of larceny in the first degree in violation of General Statutes § 53a-122 (a). She claims that the trial court improperly (1) denied her motion to dismiss the information for lack of subject matter jurisdiction, (2) charged the jury on the elements of larceny, (3) charged the jury by referring to facts not in evidence and to a civil statute and (4) failed to allow her to present evidence of a corollary civil matter. We reverse the judgment of the trial court.

The jury reasonably could have found the following facts. In 1986, pursuant to the Uniform Gifts to Minors Act, the defendant and her husband established investment accounts in the amount of $30,000 each for the benefit of their two sons, Steven and Gregory. The defendant was designated as the custodian for Gregory’s account. In 1990, the defendant and her husband divorced. The dissolution agreement provided that the custodial accounts would be placed in a trust, with the defendant and her husband as joint trustees.

The moneys in Gregory’s custodial account were never placed in trust and remained under the defendant’s custodianship. In May, 1996, the defendant liquidated the custodial account and placed the moneys, now totaling $67,000, in a savings account. The account was opened in Gregory’s name with the defendant as custodian. After Gregory’s twenty-first birthday, he sent a letter to the defendant demanding that she turn over the funds to him. The defendant responded by sending a letter to Gregory’s father requesting the amount of Gregory’s educational expenses for fall semester. The defendant was subsequently arrested and charged with first degree larceny. After a jury trial, the defendant was convicted and this appeal followed.

I

As a preliminary matter, the defendant first claims that the trial court lacked subject matter jurisdiction to hear the first degree larceny charge. She claims that, because an underlying issue dealt with the defendant’s actions as custodian, the Probate Court was the only court with jurisdiction to hear the case. We disagree.

The defendant contends that the underlying action is purely a civil action. General Statutes § 51-164s provides in relevant part: “The Superior Court shall be the sole court of original jurisdiction for all causes of action, except such actions over which the courts of probate have original jurisdiction, as provided by statute. . . .” Disputes under the Uniform Transfers to Minors Act fall under the original jurisdiction of the Probate Court. General Statutes § 45a-557b provides in relevant part: “Courts of probate in any district in which the trans-feror, the minor or the custodian is resident, or in which the custodial property is located shall have jurisdiction of any disputes or matters involving custodianship under sections 45a-557 to 45a-560b, inclusive. . . .” The defendant’s argument, therefore, hinges on the proposition that a charge of first degree larceny of the custodial funds is really nothing more than a civil dispute between the minor and the custodian. We reject this rationale.

While the minor child could have petitioned to remove the defendant as custodian before he reached majority, he did not do so. Upon the minor’s reaching majority, the defendant’s custodianship terminated. General Statutes § 45a-559e provides: “The custodian shall transfer in an appropriate maimer the custodial property to the minor, the legal representative of the minor or the personal representative of the minor’s estate upon the earlier of (1) the minor’s attainment of twenty-one years of age, or (2) the minor’s death.” It was the defendant’s failure to transfer the custodial property to her son Gregory after his twenty-first birthday that constituted the alleged unlawful withholding and served as the basis for the first degree larceny conviction.

The state was required to prove beyond a reasonable doubt that the defendant, with intent to deprive another of property or to appropriate the same to himself or a third person, wrongfully withheld such property from the owner, and that the value of the property exceeded $10,000. General Statutes §§ 53a-119 and 53a-122 (a) (2). While the defendant’s actions as custodian are relevant, they do not transform the case into a civil dispute between the custodian and minor child. Larceny is an offense against the state. “Penal statutes, strictly and properly, are those imposing punishment for an offense against the State .... The words ‘penal’ and ‘penalty,’ in their strict and primary sense, denote a punishment, whether corporal or pecuniary, imposed and enforced by the State for a crime or offense against its laws.” (Citation omitted.) Plumb v. Griffin, 74 Conn. 132, 134, 50 A. 1 (1901).

The Superior Court has subject matter jurisdiction to hear criminal matters “from its authority as ‘a constitutional court of unlimited jurisdiction. Conn. Const., art. 5 § 1.’ State v. Stallings, 154 Conn. 272, 278, 224 A.2d 718 (1966). The Superior Court’s authority in a criminal case becomes established by the ‘proper presentment of the information . . . which is essential to initiate a criminal proceeding.’ Reed v. Reincke, 155 Conn. 591, 598, 236 A.2d 909 (1967).” State v. Carey, 222 Conn. 299, 305-306, 610 A.2d 1147 (1992), on appeal after remand, 228 Conn. 487, 636 A.2d 840 (1994). Unquestionably, the Superior Court has subject matter jurisdiction over this criminal case in which the information charges the defendant with larceny in the first degree.

II

The defendant next claims that the trial court improperly charged the jury on the crime of larceny. She claims that the trial court failed to instruct the jury that larceny requires proof that the taking was done with the intent to deprive the owner of the properly permanently. We agree.

The defendant properly preserved this claim by filing a written request to charge. Practice Book § 42-16. “Our standard of review concerning claims of instructional error is well settled. [J]ury instructions must be read as a whole and . . . are not to be judged in artificial isolation from the overall charge. . . . The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . Hall v. Burns, 213 Conn. 446, 475, 569 A.2d 10 (1990). The instruction must be adapted to the issues and may not mislead the jury but should reasonably guide it in reaching a verdict. Lemonious v. Burns, 27 Conn. App. 734, 740, 609 A.2d 254, cert. denied, 223 Conn. 915, 614 A.2d 823 (1992). We must review the charge as a whole to determine whether it was correct in law and sufficiently guided the jury on the issues presented at trial. State v. Coleman, 35 Conn. App. 279, 292, 646 A.2d 213 [cert. denied, 231 Conn. 928, 648 A.2d 879] (1994).” (Internal quotation marks omitted.) State v. Elijah, 42 Conn. App. 687, 691, 682 A.2d 506, cert. denied, 239 Conn. 936, 684 A.2d 709 (1996). “An error in the charge requires reversal only if, in the context of the whole instruction, there is a reasonable possibility that the jury was misled in reaching its verdict. State v. Anderson, 212 Conn. 31, 38, 561 A.2d 897 (1989); State v. Woods, 23 Conn. App. 615, 623, 583 A.2d 639 (1990).” State v. Dickerson, 28 Conn. App. 290, 299, 612 A.2d 769 (1992).

Our review of the charge in its entirety leads us to conclude that the trial court improperly failed to instruct the jury that larceny requires proof of an intent to deprive the owner of property permanently. One of the essential elements of larceny is “the existence of a felonious intent in the taker to deprive the owner of [property] permanently . . . .” (Internal quotation marks omitted.) State v. Huot, 170 Conn. 463, 467-68, 365 A.2d 1144 (1976). General Statutes § 53a-118 (a) (3) provides: “To ‘deprive’ another of property means (A) to withhold it or cause it to be withheld from him permanently or for so extended a period or under such circumstances that the major portion of its economic value or benefit is lost to him . . . .’’On the element of intent, the trial court instructed the jury that “[i]f someone took property honestly although mistakenly believing that he or she had a right to do so, you cannot find the required intent of this element of larceny. Also, if someone took the property that he or she honestly believed was abandoned, for example, from a dumpster, the necessary intent is missing. Also, if someone took property intending to return it to the true owner or if he or she believed he or she had permission to take the property, the wrongful intention of depriving a person of property cannot be proven.” The contested issue in this case was whether the defendant intended to deprive her son of the property permanently. Reversal is required because, by failing to instruct the jury that any taking or withholding required an intent to deprive permanently, it is reasonably possible that the jury was misled.

Ill

The defendant’s remaining claims consist of mere assertions of fact devoid of any citation of authority. Although some of these claims may arise in a new trial, we decline to review them because they are inadequately briefed. “We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Citation omitted; internal quotation marks omitted.) State v. Henderson, 47 Conn. App. 542, 558, 706 A.2d 480, cert. denied, 244 Conn. 908, 713 A.2d 829 (1998).

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

In this opinion the other judges concurred.

       General Statutes (Rev. to 1985) §§ 45-101 through 45-109b.

       The Uniform Gifts to Minors Act was replaced in 1995 by the Uniform Transfers to Minors Act. Public Acts 1995, No. 95-117.


text:
    STATE OF CONNECTICUT v. JERRY W. VLASAK
    (AC 17222)
    Foti, Sullivan and Spallone, Js.
    Argued November 9, 1998
    officially released March 16, 1999

      Norman A. Pattis, with whom, on the brief, was John R. Williams, for the appellant (defendant).

      Harry Weller, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Christopher Parakilas, assistant state’s attorney, for the appellee (state).
   Opinion

SULLIVAN, J.

The defendant, Jerry W. Vlasak, appeals from the judgment of conviction, rendered after a jury trial, of criminal trespass in the first degree in violation of General Statutes § 53a-107. The defendant claims that (1) the trial court improperly denied him a fair trial by excluding evidence of bias and (2) there was insufficient evidence to support the conviction under § 53a-107. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 26, 1996, the defendant was arrested at a circus held at the St. Bernard’s School, located on property owned by the Catholic church. The defendant was a member of a group of animal rights activists who were protesting the treatment of animals at the circus. On several occasions, the protestors were asked to leave the property. Two of the protestors who were videotaping the animals were asked to leave the property by a circus worker. Father Brian Monnerat, pastor of St. Bernard’s, who had control and authority over the property, told a group of the protestors that they were on private property and asked them to leave the parish grounds.

Monnerat also asked the Enfield police officers at the scene to keep the protestors off the property. The police officers informed the protestors that they must leave the church property, and the protestors gathered on the public sidewalk by the entrance to the property. The police officers told them that they could not reenter St. Bernard’s property, disrupt traffic or disrupt pedestrians’ entrance to the grounds. The police officers also informed the protestors of the boundary of the church property and warned them that they would be arrested if they were caught reentering the property. The defendant was subsequently observed reentering the church property and was arrested.

The defendant, who appeared pro se at trial, was convicted of criminal trespass in the first degree. This appeal followed.

I

The defendant first claims that an evidentiary ruling by the trial court impermissibly infringed on his rights under the confrontation clause of the sixth amendment to the United States constitution. Specifically, the defendant argues that the trial court improperly prohibited him from introducing impeachment evidence concerning one of the prosecution’s witnesses, Officer Richard Matte. We disagree.

The following additional facts are necessary for a proper resolution of this claim. Matte testified at trial that he had observed the defendant reenter the church property. At the time of trial, Matte was also the plaintiff in a civil lawsuit against the defendant. On two separate occasions, the defendant was given the opportunity to cross-examine Matte. The defendant did not seek to impeach the witness with evidence of bias or motive on either occasion.

Instead, the defendant sought during his redirect narrative testimony to introduce evidence of Matte’s civil lawsuit against him. The trial court found that the defendant had sufficient opportunity to raise the issue of Matte’s lawsuit as evidence to show motive, interest or bias, but failed to do so. As the defendant did not use his opportunities to raise the issue and instead sought to present the evidence during his own narrative testimony, the court found the testimony to be irrelevant and instructed the jury to disregard it. On appeal, the defendant argues that the trial court’s refusal to allow his testimony concerning Matte’s lawsuit was a denial of his sixth amendment right to confrontation. We disagree.

We recognize that “[c]ross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. . . . This right, however, is not absolute, but may bow to other legitimate interests in the criminal trial process. . . . Such an interest is the trial court’s right, indeed, duty, to exclude irrelevant evidence.” (Citation omitted; internal quotation marks omitted.) State v. Carter, 48 Conn. App. 755, 760, 713 A.2d 255, cert. denied, 247 Conn. 901, 719 A.2d 905 (1998). “If the defendant does not specifically request cross-examination on the issue of motive, interest or bias ... he may waive his right to confront the witness on those issues. . . . This is so because he cannot be heard to complain when he chose not to cross-examine the witness in this respect.” (Citations omitted.) State v. Fullwood, 199 Conn. 281, 286, 507 A.2d 85 (1986).

“[T]he Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose . . . infirmities through cross-examination, thereby calling to the attention of the fact-finder the reasons for giving scant weight to the witness’ testimony.” (Internal quotation marks omitted). State v. Yednock, 14 Conn. App. 333, 339, 541 A.2d 887 (1988). Furthermore, the United States Supreme Court has stated that “ ‘[t]he Confrontation Clause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’ . . . United States v. Owens, 484 U.S. 554, 559, 108 S. Ct. 838, 98 L. Ed. 2d 951 (1988), quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 88 L. Ed. 2d 15 (1985).’ ” State v. Menzies, 26 Conn. App. 674, 685, 603 A.2d 419, cert. denied, 221 Conn. 924, 608 A.2d 690 (1992).

In this case, the defendant was afforded an opportunity to cross-examine Matte fully and fairly concerning his credibility in light of his civil lawsuit, but he never raised the issue. “[A] defendant’s right of [cross-examination] is not infringed if the defendant fails to pursue a line of inquiry open to him .... The test is whether the opportunity to cross-examine existed, not whether full use of such opportunity was made.” (Internal quotation marks omitted.) State v. Morant, 242 Conn. 666, 684, 701 A.2d 1 (1997); State v. Bruno, 236 Conn. 514, 533, 673 A.2d 1117 (1996). The record does not reflect, nor does the defendant claim, that the trial court placed any restrictions on his ability to cross-examine Matte. Rather, the defendant argues that the confrontation violation occurred when he was not allowed, during his redirect narrative testimony, to raise the issue of Matte’s lawsuit and possible bias.

“Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law.” Blakeney v. Commissioner of Correction, 47 Conn. App. 568, 586, 706 A.2d 989, cert. denied, 244 Conn. 913, 713 A.2d 830 (1998). Thus, we conclude that the defendant was given a full and fair opportunity to cross-examine Matte, but failed to do so. The defendant’s claim that his rights under the confrontation clause were violated is therefore without merit.

We next examine whether the trial court abused its discretion by not allowing the defendant to raise the issue of Matte’s civil lawsuit during his redirect narrative testimony. “It is well established that [t]he trial court has broad discretion in ruling on the admissibility [and relevancy] of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion.” (Citation omitted; internal quotation marks omitted.) State v. Matos, 240 Conn. 743, 764, 694 A.2d 775 (1997). After a review of the record, we conclude that the trial court properly exercised its discretion in excluding this testimony.

II

The defendant next claims that there was insufficient evidence to support his conviction for criminal trespass in the first degree. Specifically, the defendant argues that the state failed to prove beyond a reasonable doubt that he was told by the appropriate party to leave and not to reenter the church property. We disagree.

“When an appeal challenges the sufficiency of the evidence to justify a verdict of guilty, we have a twofold task. We first review the evidence presented at trial, construing it in the light most favorable to sustaining the verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could have reasonably concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Jones, 50 Conn. App. 338, 362, 718 A.2d 470 (1998).

“[T]o to convict the defendant of criminal trespass in the first degree [under § 53a-107], the state [has] to prove beyond a reasonable doubt the following essential elements of that offense: (1) that the defendant, knowing he was not privileged or licensed to do so, entered or remained in a building [or any other premises] ; and (2) that the defendant committed that act after an order to leave or not to enter has been personally communicated to him by the owner or other authorized person.” (Internal quotation marks omitted.) State v. Kinchen, 243 Conn. 690, 702-703, 707 A.2d 1255 (1998). “The element of notification must be proved by the state beyond a reasonable doubt.” State v. Delgado, 19 Conn. App. 245, 254, 562 A.2d 539 (1989).

The defendant argues that the state failed to meet this burden because Monnerat himself did not personally communicate to him that he was not to reenter the church premises. The record reveals, however, that Monnerat testified on direct examination that the defendant was present on one of the occasions when he asked the protestors to vacate the premises. This was confirmed by another state’s witness, Officer Gary Castle, who testified that he saw Monnerat tell the defendant to leave the property.

The defendant also concedes that he was told to leave the property by the police. On appeal, the defendant incorrectly asserts that in State v. LoSacco, 12 Conn. App. 172, 529 A.2d 1348 (1987), this court held that a police officer was not an authorized person within the meaning of the trespass statute.

In LoSacco, we noted that the authorized person, the building superintendent, could have transferred his authority to a police officer, making him or her an authorized person pursuant to § 53a-107. Id., 178. We concluded in LoSacco that the police officers were not authorized persons because the state failed to prove that this transfer of authority from the authorized person occurred. Id., 178-79.

In the present case, however, Monnerat testified that he asked the police officer on duty to assist him in removing the protestors from the property. Further, Castle testified that he informed Monnerat that the police officers would help him keep the protestors from trespassing on the property if he told the protestors not to trespass in the presence of the police. Both Castle and Matte testified that Monnerat asked them to keep the protestors off the property and that they were present when Monnerat told a group of protestors, including the defendant, not to reenter the property.

We conclude that the jury reasonably could have determined that Monnerat personally communicated to the defendant an order to leave the property and not to return. We also conclude that there was sufficient evidence in this case for the jury reasonably to have found that Monnerat authorized the police officers to remove the protestors from the church property. Thus, the jury reasonably could have determined that the cumulative effect of the evidence was sufficient to establish that the defendant was guilty beyond a reasonable doubt of first degree trespassing. Accordingly, we find the evidence sufficient to sustain the conviction for criminal trespass in the first degree.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-107 (a) provides: “A person is guilty of criminal trespass in the first degree when: (1) Knowing that he is not licensed or privileged to do so, he enters or remains in a building or any other premises after an order to leave or not to enter personally communicated to him by the owner of the premises or other authorized person; or (2) he enters or remains in a building or any other premises in violation of a restraining order issued pursuant to section 46b-15 or a protective order issued pursuant to section 46b-38c or 54-lk by the Superior Court.”

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him . . . .”

       On April 15, 1997, Matte testified and was cross-examined by the defendant. Again on April 16, 1997, Matte testified and was cross-examined by the defendant.

       During the April 15, 1997 cross-examination of Matte, the defendant did attempt to impeach his testimony through reference to his deposition. Although this deposition was referenced by the defendant, he did not seek to introduce the fact that it was taken as part of a civil lawsuit involving Matte and the defendant. Thus, the defendant never raised the issues of bias, interest or motive.

       At trial, the following colloquy took place:
      “[The Defendant]: Officer Matte’s the officer who, essentially, effected my arrest This is the same officer who is now suing me for mental anguish—
      “[Assistant State’s Attorney]: Objection, Your Honor—
      “[The Defendant]:—regarding the arrest.
      “[Assistant State’s Attorney]: I’d ask that the jury be removed please.
      “The Court: The jury is excused. [At which time the jury left the courtroom]
      “[Assistant State’s Attorney]: This is a gratuitous offering by the [defendant] of a peripheral—or a civil proceeding outside of this which has absolutely no bearing whatsoever on the case at hand. Officer Matte was— testified two days in a row, and the [defendant] had every opportunity to cross-examine him with respect to civil suits or anything arising out of this particular case, but he didn’t choose to do that. He chooses to, in his closing argument—which we can also call his testimony—indicate that at this point. I think it’s highly inflammatory» and we should have the jury instructed to disregard anything along those lines.
      “[The Defendant]: I think this is—it goes a long way toward proving the reliability and—what’s the word I’m looking for—the respect or the believability of Officer Matte’s testimony, and I did introduce his deposition ....
      “[Assistant State’s Attorney]: Again, Your Honor, he had an opportunity to do that on cross-examination and failed to do so. To bring it up at this point is highly improper.
      “[The Defendant]: I’m under oath, Your Honor. I simply stated something that was the truth.
      “[The Court]: Just because you’re under oath, you can’t be—you can’t say everything in the world that you want to say. Yes, you had more than ample opportunity to bring that out if you wanted. I don’t ever recall hearing that before, and—in the way it’s been brought out, and the context it’s brought out, and particularly in light of the opportunity you had to bring it out in an appropriate fashion, if] indeed, it would be allowed. Your remarks are not appropriate, and the jury’s going to be instructed to disregard that, and you’re not to mention it any further. All right, would you bring the jury back, please?”

       It is undisputed that Monnerat had authority over the church property.


author: FOTI, J.

text:
    PAUL REVERE LIFE INSURANCE COMPANY v. JANIS A. PASTENA
    (AC 17434)
    Foti, Lavery and Daly, Js.

      Argued December 1, 1998
    officially released March 16, 1999

      John F. McKenna, with whom was Rebecca B. Lamont, for the appellant (defendant).

      Linda L. Morkan, with whom, on the brief, was Theodore J. Tucci, for the appellee (plaintiff).
   Opinion

FOTI, J.

The defendant appeals from the summary judgment rendered by the trial court in favor of the plaintiff. The defendant claims that the trial court improperly (1) determined that there were no genuine issues of material fact and relied on certain evidence in rendering summary judgment and (2) granted the remedy of rescission. We affirm the judgment of the trial court.

The following facts are relevant to the resolution of this appeal. In February, 1994, the defendant, Janis A. Pastena, a surgeon, applied for a surgeon specific disability income insurance policy with the plaintiff, Paul Revere Life Insurance Company. At that time, the defendant indicated on her insurance application that she was presently covered under a disability insurance policy through the American College of Physicians and Surgeons (ACS policy). She further indicated that the ACS policy would be discontinued.

The application for insurance with the plaintiff had asked, “Is policy applied for intended to replace or change any existing insurance?” to which the defendant answered in the affirmative. In describing this preexisting insurance, the defendant referred to the ACS policy and indicated that it was “to be discontinued,” giving an effective date of discontinuance as March 15, 1994. Above the signature section, the application stated, inter alia: “It is understood and agreed as follows . . . (2) I will discontinue any policy(ies) shown to be discontinued in answer to questions [above] on or before the date(s) indicated. The Company will rely on such answers in determining the amount, if any, of insurance it will issue. (3) No agent or broker has authority to waive the answer to any question, to determine insur-ability, to waive any of the Company’s rights or requirements, or to make or alter any contract or policy.”

On May 9, 1994, the plaintiff issued the policy. This decision was based on the defendant’s representations in her application, including her declaration that she would discontinue her existing ACS policy. On July 14, 1994, and on various dates thereafter, the plaintiff notified the defendant that it had discovered that the defendant’s ACS policy was still in effect and requested that she discontinue it. On April 12,1996, after learning that the ACS policy was still in force, the plaintiff wrote to the defendant notifying her that, in light of her failure to drop the ACS coverage, her policy with the plaintiff was rescinded. In addition, the plaintiff issued the defendant a check for $6977.19 as a refund for the premiums that she had already paid. The defendant then returned the check to the plaintiff, whereupon the plaintiff commenced this action.

The plaintiff filed a two count complaint against the defendant. The first count of the complaint alleged that the defendant had made material misrepresentations in her policy application with the plaintiff. The second count alleged that the defendant had materially breached the terms of the policy. On the basis of those claims, the plaintiff sought a rescission of the policy.

On February 4, 1997, the plaintiff filed a motion for summary judgment, together with an affidavit and other supporting documentation. In response, the defendant filed a memorandum in opposition to the plaintiffs motion, attaching her own affidavit and various exhibits. On July 10, 1997, the trial court rendered summary judgment in favor of the plaintiff and adjudged the remedy of rescission to be appropriate. This appeal followed.

The standard of review of a trial court’s decision granting a motion for summary judgment is well settled and is not challenged in this case. Practice Book § 17-49 provides that summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” A “material fact” is a fact that will make a difference in the result of a case. Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990). “The test is whether a party would be entitled to a directed verdict on the same facts.” Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982).

A trial court, in deciding a motion for summary judgment, “must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 781, 595 A.2d 334 (1991); Remington v. Aetna Casualty & Surety Co., 35 Conn. App. 581, 583, 646 A.2d 266 (1994), on appeal after remand, 240 Conn. 309, 692 A.2d 399 (1997). “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.” D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). Although the moving party must show the nonexistence of any material fact, an opposing party must substantiate its adverse claims by showing that there is a genuine issue of material fact along with the evidence disclosing the existence of such an issue. Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995).

“ [Construction of a contract of insurance presents a question of law for the court which this court reviews de novo.” Aetna Life & Casualty Co. v. Bulaong, 218 Conn. 51, 58, 588 A.2d 138 (1991).

I

The defendant first claims that there were genuine issues of material fact and that the trial court improperly granted summary judgment in favor of the plaintiff. The defendant claims that the trial court improperly concluded, as a matter of law, that she had made material misrepresentations in her application for disability insurance. We do not agree.

“Where there is no ambiguity [in the language of a contract] . . . there is no occasion for construction [to determine intent] and the agreement will be enforced as its terms direct.” McHugh v. McHugh, 181 Conn. 482, 491, 436 A.2d 8 (1980). Contract language is unambiguous when it has a definite and precise meaning about which there is no reasonable basis for a difference of opinion. Levine v. Advest, Inc., 244 Conn. 732, 746, 714 A.2d 649 (1998). The statements and answers made by the defendant here are unambiguous, and there is no place for any inquiry as to her intent. “A contract should be construed so as to give full meaning and effect to all of its provisions . . . .” (Internal quotation marks omitted.) Id., 753. There is no dispute that the statements and answers contained in an insurance application become part of that application and any contract of insurance issued on it, and that these statements and answers are material. State Bank & Trust Co. v. Connecticut General Life Ins. Co., 109 Conn. 67, 70, 145 A. 565 (1929). If the material representations are untrue, they “invalidate the policy without further proof of actual conscious design to defraud.” Id., 72. An insurer has a right to rescind for a material misrepresentation on an insurance application if it is not an innocent misrepresentation, but one “known by the insured to be false when made.” Middlesex Mutual Assurance Co. v. Walsh, 218 Conn. 681, 692, 590 A.2d 957 (1991).

The defendant’s affidavit in opposition to the plaintiffs motion for summary judgment does not claim that the statements were true when made, or even that she thought they were true, but rather that she never made them. The defendant claims that an agent of the plaintiff filled out the application and that the defendant either “did not see or examine [it] carefully.” In her affidavit, the defendant claims that she never intended to discontinue the ACS policy but, perhaps, intended to modify it. The application, however, clearly states above the signature section: “I have read the statements and answers recorded [in the application]. They are, to the best of my knowledge and belief, true and complete and correctly recorded. They will become part of this Application and any policy(ies) issued on it.”

The trial court properly concluded, as a matter of law, that the defendant knowingly made the misrepresentation contained in her insurance application and that her admitted failure to read or examine the application carefully did not excuse or cause the misrepresentation to be innocent. We also conclude that the misrepresentation was material because it is clear, both on the face of the application and through the affidavits submitted, that the plaintiff would not have issued the insurance policy without the defendant’s promise to discontinue her ACS policy.

We must also conclude that the trial court did not improperly rely on evidence presented in the form of the contract and the affidavits. Because no genuine issues of material fact exist, the trial court properly concluded that the plaintiff was entitled to judgment as a matter of law.

n

The defendant next claims that the trial court improperly allowed the plaintiff to rescind the contract of insurance because it had waived that right, and because the defendant cannot be restored to the position she was in before the policy was issued. We disagree.

“Rescission of a contract is an appropriate remedy if there has been a material misrepresentation of fact upon which a party relied and which caused it to enter the contract. . . . Rescission, simply stated, is the unmaking of a contract. It is a renouncement of the contract and any property obtained pursuant to the contract, and places the parties, as nearly as possible, in the same situation as existed just prior to the execution of the contract. A condition precedent to rescission is the offer to restore the other party to its former condition as nearly as possible.” (Citations omitted.) Kavarco v. T.J.E., Inc., 2 Conn. App. 294, 298-99, 478 A.2d 257 (1984).

The defendant argues that because surgeon specific coverage is no longer available in the insurance industry, she cannot be put back into the same position that she was in before entering the contract. The defendant claims that the plaintiff had led her to believe that she could keep her ACS coverage and, “[b]y stringing [the defendant] along, [she] lost her ability to obtain surgeon specific coverage anywhere.” The defendant’s argument of detrimental reliance is without merit. By her pleadings and affidavit, the defendant admitted to never reducing the benefits in her ACS policy. Even if she had somehow relied on representations of the plaintiff, she never changed her position, thereby incurring some injury. Nor is there any validity to her argument that because this particular type of insurance is no longer available, she has been injured. She cannot here claim a right to be overinsured. The trial court did not improperly adjudge the remedy of rescission to be appropriate.

The judgment is affirmed.

In this opinion the other judges concurred.

       Because we conclude as we do, we find it unnecessary to address the plaintiffs alternate ground for affirmance, i.e., that the defendant materially breached the terms of the insurance policy that the plaintiff had issued to her.

       In the alternative, the trial court also concluded that the defendant materially breached the terms of the policy; however, summary judgment was rendered on the basis of material misrepresentation.

       In fact, the application signed by the defendant stated: “I have read the statements and answers recorded [in the application]. They are, to the best of my knowledge and belief, true and complete and correctly recorded. They will, become part, of this Application and any policy(ies) issued on it.” (Emphasis added.)

       On appeal, the defendant, for the first time, alleges that the agent was an agent for the plaintiff who had authority to modify the terms of the policy. Such determinations, she argues, are factual and preclude the granting of summary judgment. By its pleadings, the plaintiff claimed that the agent was the defendant’s insurance broker. The defendant did not raise by special defense this person’s status as an agent for the plaintiff and his authority to act on its behalf. The defendant did refer to this agent as the plaintiffs agent in her affidavit filed in opposition to the plaintiffs motion. It is clear, however, from the face of the application, that “[n]o agent or broker [had] authority to waive the answer to any question, to determine insurability, to waive any of the Company’s rights or requirements, or to make or alter any contract or policy.”

       To reach the conclusion that material misrepresentations were made, the trial court considered only the application itself and the defendant’s affidavit. Because those documents constituted a sufficient basis for the trial court’s action, we conclude that it is unnecessary to review other documents or affidavits not relied on by the trial court, which the defendant claims caused the plaintiffs evidence to be insufficient for purposes of rendering a summary judgment.