author: DiPENTIMA, C. J.

text:
    SUSANA C. KAVANAH v. LEO G. KAVANAH III
    (AC 34023)
    DiPentima, C. J., and Sheldon and Harper, Js.
    Argued February 6
    officially released May 21, 2013

      Jon T. Kukucka, with whom, on the brief, were C. Michael Budlong and Campbell D. Barrett, for the appellant (plaintiff).
   Opinion

DiPENTIMA, C. J.

The plaintiff, Susana C. Kavanah, appeals from certain financial orders made by the trial court following the dissolution of her marriage to the defendant, Leo G. Kavanah III. On appeal the plaintiff claims that the court improperly (1) deviated from the child support guidelines and (2) ordered the parties, sua sponte, to pay the guardian ad litem an additional sum of $5000. We agree with both of the plaintiff’s claims and therefore reverse the judgment and remand the matter to the trial court for further proceedings.

The parties married in June, 2007, and their daughter was bom later that year. On February 4, 2010, the plaintiff commenced this dissolution action. She sought, inter alia, orders for child support and joint legal custody. The plaintiff also requested that the daughter’s primary residence be with her. On March 29, 2010, the court appointed attorney Sandi B. Girolamo as guardian ad litem for the daughter.

The court, Dolan, J., conducted a trial on September 15, 2011, and October 27, 2011. The court accepted the parties’ agreement as to many of the property and financial issues at the outset of the trial. The parties also agreed to an order of joint custody of the daughter. Complicating the parenting schedule, however, was the plaintiffs relocation from Southington to Monroe during the pendency of the divorce. Both Lisa Killiany, the family relations counselor assigned to this case, and Girolamo opposed this relocation due to the increase in travel it required and its disruptive effect on the daughter.

The court issued an oral decision on October 27, 2011. It dissolved the marriage and ordered custody and visitation mostly in accordance with Girolamo’s recommendations. The court set the visitation schedule so that the defendant had custody of the daughter five out of every six weekends and every other Wednesday. The court also ordered that the defendant be responsible for driving his daughter back to the plaintiffs house every other weekend of his time with her. The plaintiff was responsible for two thirds of the day care expenses and the defendant one third. The court found an arrear-age owed by the defendant in the amount of $3006.90 for day care expenses. The court foundthe presumptive amount of child support under the guidelines to be $100 per week, payable by the defendant. The court entered an order deviating from the guidelines. “Based on all of the family obligations here, including travel cost, I’m going to order [the defendant] to pay $75 a week child support. I’m going to order him to pay $41 a week for the day care.” The plaintiffs counsel inquired about the reason for the deviation and the court noted that the defendant was driving the daughter back to the plaintiffs house twice per month.

The court also ordered the parties to pay Girolamo an additional sum of $5000 in fees. The order was made sua sponte by the court after Girolamo testified that she had received payment for her services from the state. The plaintiff was ordered to pay two thirds of the fees and the defendant one third. This appeal followed.

On January 23, 2012, the plaintiff filed a motion for articulation, requesting that the court articulate the reasons for (1) the deviation from the child support guidelines, (2) the award of $5000 in fees to Girolamo and (3) the division of payment of the fees between the parties. The court denied the motion on January 31, 2012. On February 14, 2012, the plaintiff filed a motion for review with this court. We granted the motion and ordered the trial court to explain why it had ordered $5000 in fees when Girolamo had accepted payment from the state and why the plaintiff was required to pay two thirds of said fees. On April 12, 2012, the court issued its articulation. It explained that it ordered the plaintiff to pay two thirds of the fees owed to Girolamo after considering all the relevant statutory criteria and case law and taking into account the fact that the defendant did not receive an interest in the parties’ real estate or the plaintiffs pension assets, and his obligations in providing for two children from a previous marriage. With respect to the fees awarded to Girolamo, the court stated: “The guardian ad litem was awarded $5000 in counsel fees because the parties were not indigent and the guardian ad litem did not qualify to be paid at state rates. This was confirmed by the substantial legal fees that the plaintiff paid her trial counsel and the $10,000 fee that the defendant paid appellate counsel.”

On appeal, the plaintiff claims that the court’s deviation from the child support guidelines was improper. She also contends that the court improperly awarded, sua sponte, $5000 in fees to Girolamo. We address each claim in turn.

We start by setting forth the standard of review. “The well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts. . . . As has often been explained, the foundation for this standard is that the trial court is in a clearly advantageous position to assess the personal factors significant to a domestic relations case .... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action.” (Citation omitted; internal quotation marks omitted.) Maturo v. Maturo, 296 Conn. 80, 87-88, 995 A.2d 1 (2010); Weinstein v. Weinstein, 104 Conn. App. 482, 487, 934 A.2d 306 (2007), cert. denied, 285 Conn. 911, 943 A.2d 472 (2008).

I

In her claim that the court improperly ordered a downward deviation from the child support guidelines, the plaintiff argues, inter alia, that there was no evidence to support the court’s finding that the travel from Monroe to Southington justified the deviation, and therefore that the court’s order amounted to an abuse of discretion. We agree.

We begin our analysis by identifying the legal principles regarding the application of the child support guidelines. “To ensure the appropriateness of child support awards, General Statutes § 46b-215a provides for a commission to oversee the establishment of child support guidelines. General Statutes § 46b-215b requires that [t]he . . . guidelines ... be considered in all determinations of child support amounts .... [T]here shall be a rebuttable presumption that the amount of such awards which resulted from the application of such guidelines is the amount of support .... A specific finding on the record that the application of the guidelines would be inequitable or inappropriate in a particular case, as determined under criteria established by the Commission for Child Support Guidelines under section 46b-215a, shall be required in order to rebut the presumption in such case.

“The guidelines incorporate these statutory rules and contain a schedule for calculating the basic child support obligation, which is based on the number of children in the family and the combined net weekly income of the parents. Regs., Conn. State Agencies § 46b-215a-2b (f). Consistent with ... § 46b-215b (a), the guidelines provide that the support amounts calculated thereunder are the correct amounts to be ordered by the court unless rebutted by a specific finding on the record that the presumptive support amount would be inequitable or inappropriate. Regs., Conn. State Agencies § 46b-215a-3 (a). The finding must include a statement of the presumptive support amount and explain how application of the deviation criteria justifies the variance. Id.; see also General Statutes § 46b-215b (a). [Our Supreme Court] has stated that the reason why a trial court must make an on-the-record finding of the presumptive support amount before applying the deviation criteria is to facilitate appellate review in those cases in which the trial court finds that a deviation is justified. ... In other words, the finding will enable an appellate court to compare the ultimate order with the guideline amount and make a more informed decision on a claim that the amount of the deviation, rather than the fact of a deviation, constituted an abuse of discretion.” (Citation omitted; internal quotation marks omitted.) Budrawich v. Budrawich, 132 Conn. App. 291, 299-300, 32 A.3d 328 (2011); see also O'Brien v. O’Brien, 138 Conn. App. 544, 549-54, 53 A.3d 1039 (2012).

The court found the presumptive amount under the child support guidelines to be $100 per week. It then stated that, on the basis of all the family obligations, including travel cost, it would deviate from the child support guidelines and ordered a payment of $75 per week. Section 46b-215a-3 (b) (3) of the Regulations of Connecticut State Agencies provides in relevant part: “In some cases, a parent may incur extraordinary expenses that are . . . necessary for the parent to maintain a satisfactory parental relationship with the child .... Only the following expenses, when found to be extraordinary and to exist on a substantial and continuing basis, may justify a deviation from presumptive support amounts under this subdivision: (A) significant visitation expenses . . . (Emphasis added.)

Our Supreme Court has instructed that “[t]he deviation criteria are narrowly defined and require the court to make a finding on the record as to why the guidelines are inequitable or inappropriate.” Maturo v. Maturo, supra, 296 Conn. 100. We conclude that the court failed to make the required finding and therefore abused its discretion in deviating from the child support guidelines by $25 per week. We agree with the statement of the court in Weissman v. Fissell, Superior Court, judicial district of New Haven, Docket No. FA-01-0449944-S (July 5, 2006), that “[m]any non-custodial parents have some transportation costs to see their child—for parents living within driving distance of each other, for example, the non-custodial parent is likely to pay for fuel and other costs picking up or dropping off the child, but these ordinary expenses usually do not warrant a deviation from the presumptive amount.” See also Favrow v. Vargas, 231 Conn. 1, 35, 647 A.2d 731 (1994) (noncustodial parent ordinarily must bear incidental expenses of visitation).

In this case, the only criterion stated for the deviation from the child support guidelines was the travel expenses of the defendant. To the extent that the court referenced “family obligations” we note that such a vague and generalized statement would not support a deviation on its own. See Baker v. Baker, 47 Conn. App. 672, 676-77, 707 A.2d 300 (1998) (failure of trial court specifically to identify criteria justifying deviation from child support guidelines warranted reversal and remand for new hearing). The court failed to identify why the defendant’s travel costs did not fall into the “ordinary” category, but rather were “extraordinary” so as to warrant a deviation from the child support guidelines. Further, after our careful review of the record, we are unable to discern any such evidence that would support the court’s determination. For these reasons, we conclude that court abused its discretion in ordering the downward deviation from the child support guidelines. Accordingly, we reverse that order and remand the case for a new hearing on the financial issues regarding child support.

II

We now address the plaintiffs claim that the court improperly ordered the parties, sua sponte, to pay $5000 in fees to Girolamo. Specifically, she argues that the court should not have issued such an order when neither the parties nor Girolamo raised the issue of her fees. We agree.

The following additional facts are necessary for our discussion. On March 29, 2010, the parties reached an agreement that provided, inter alia, that a guardian ad litem would be appointed regarding the issues of custody and visitation. It further stated that “ [t]he cost shall be shared equally by the parties.” The court, Prestley, J., accepted this agreement and appointed Girolamo as guardian ad litem. On April 15, 2010, the defendant filed a motion to be excused from paying Girolamo’s fees. He stated that due to his present financial situation and the court’s support order of March 29, 2010, he was unable to afford either an attorney or Girolamo’s fees. Then, on April 26, 2010, Judge Prestley issued the following order: “[Girolamo] to be paid at state rates by the State of Connecticut.”

During Girolamo’s testimony on the last day of trial, the court, Dolan, J., inquired about her fees. She indicated that she was paid by the state, but that she had reached the $1000 limit on such payment, and therefore was “essentially doing it pro bono . . . .” The court indicated that she needed to be paid. In its decision later that day, the court ordered the parties to pay $5000 to Girolamo, with the plaintiff responsible for two thirds and the defendant one third. Neither the parties nor Girolamo filed a motion or in any way requested the court to change Judge Prestley’s order or sought additional payment for Girolamo’s services as guardian ad litem. We also note that Girolamo never filed a fee affidavit with the court.

As a general matter, “[t]he court may order either party to pay the fees for the guardian ad litem pursuant to General Statutes § 46b-62, and how such expenses will be paid is within the court’s discretion. . . . [W]e may not alter an award of attorney’s fees unless the trial court has clearly abused its discretion, for the trial court is in the best position to evaluate the circumstances of each case. . . . Because the trial court is in the best position to evaluate the circumstances of each case, we will not substitute our opinion concerning counsel fees or alter an award of attorney’s fees unless the trial court has clearly abused its discretion.” (Citation omitted; internal quotation marks omitted.) Ruggiero v. Ruggiero, 76 Conn. App. 338, 347-48, 819 A.2d 864 (2003).

In this case, however, the matter of payment of Giro-lamo’s fees had been decided by Judge Prestley and that order was not challenged in any way in the intervening period before Judge Dolan’s oral decision. In other words, the parties and Girolamo had no notice that the issue of the fees for the guardian ad litem, previously addressed by Judge Prestley, would be an issue to be determined by Judge Dolan. Cf. Esposito v. Esposito, Superior Court, judicial district of Middlesex, Docket No. FA-11-4013607-S (January 7, 2013) (court raised propriety of guardian ad litem being paid at discounted state rates when attorneys for parties were not). Additionally, we have stated: “The [trial] court is not permitted to decide issues outside of those raised in the pleadings. . . . Additionally, it is well established jurisprudence that the pleadings serve to frame the issues before a trial court.” (Internal quotation marks omitted.) Gaffey v. Gaffey, 91 Conn. App. 801, 804 n.1, 882 A.2d 715, cert. denied, 276 Conn. 932, 890 A.2d 572 (2005); see also Breiter v. Breiter, 80 Conn. App. 332, 335, 835 A.2d 111 (2003) (court improperly decided matter not pleaded by parties). As stated previously, there was no motion or request seeking a different payment arrangement for Girolamo and there was no opportunity for the parties to address the issue prior to the court’s ruling. Lastly, there was no evidence of Girolamo’s services from which the court could calculate her fees as $5000 in addition to the payment she received from the state. For all these reasons, we conclude that the court improperly ordered the parties, sua sponte, to pay $5000 in fees to Girolamo.

The judgment is vacated as to the award of $5000 in fees to the guardian ad litem. The judgment is reversed only as to the issue of child support and the case is remanded for further proceedings limited to that issue. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The defendant did not file an appellate brief in this matter.

       The defendant represented himself before the trial court.

       The defendant was to pay $20 per week until his share of Girolamo’s fees were paid.

       The record is not clear as to the basis for the court’s articulation that the defendant paid $10,000 to appellate counsel.

       On October 12,2012, Girolamo filed a letter with this court in compliance with Practice Book § 67-13. She adopted the position taken in the plaintiffs appellate brief with respect to the child support issue. As to the matter of her fees, she concluded that it was not a factual or legal issue implicating the daughter’s interests, and therefore, she took no position on the issue.

       Girolamo also testified that she was unsure whether she actually had received $1000 from the state for this case.


source: Caselaw Access Project

author: LAVINE, J.

license: Public Domain

text:
    WILLIE MILLS v. COMMISSIONER OF TRANSPORTATION ET AL.
    (AC 34429)
    Lavine, Beach and Schaller, Js.

      Argued March 14
    officially released May 21, 2013

      Ronald D. Williams, Jr., for the appellant (named defendant).

      Evan M. O ’Kara, with whom, on the brief, was Alphonse J. Balzano, Jr., for the appellee (plaintiff).
   Opinion

LAVINE, J.

The named defendant, the commissioner of transportation, appeals from the judgment of the trial court denying his motion to dismiss count one of the complaint of the plaintiff, Willie Mills, seeking damages for personal injuries allegedly sustained due to a highway defect. The defendant argues that the court improperly concluded that it had subject matter jurisdiction over the plaintiffs claims. Specifically, the defendant argues that the doctrine of sovereign immunity deprives the trial court of subject matter jurisdiction because the plaintiff failed to comply with the requirements of General Statutes § 13a-144 to provide adequate notice of his filing or intent to file a claim against the state. In light of the exacting statutory requirements as explicated by our Supreme Court, we agree with the defendant and reverse the judgment of the trial court.

The record reveals the following facts and procedural history. On April 19,2006, the plaintiff sustained injuries while operating a motorcycle that struck a large pothole on North Street in Milford. On June 22,2006, the plaintiff provided the defendant with the written notice that is the subject of this appeal, in the form of a letter (notice letter). On June 27, 2006, the defendant sent the plaintiffs counsel a letter in response, indicating that it had received the notice letter and would investigate the claim. On July 5, 2006, a third party administrator for the state sent the plaintiffs counsel a letter apprising him of the status of the investigation into the plaintiffs claim.

The plaintiff commenced an action in April, 2008. The defendant filed a motion to dismiss count one of the complaint, alleging that sovereign immunity barred the plaintiffs claims. The plaintiff objected to the motion, filing a memorandum in opposition to the motion. Among other things, the defendant contended that the plaintiff had failed to comply with the statutory notice requirements of § 13a-144, and that without such notice, no cause of action existed. In particular, the defendant contended that the letter failed to provide the defendant with notice that the plaintiff intended to file a claim against the state, as opposed to a claim against the city of Milford.

In January, 2012, the court heard oral arguments on the defendant’s motion to dismiss and denied the motion in a memorandum of decision filed in March, 2012. The court concluded that the notice sufficiently “serve [d] the statutory purpose of providing such warning as would prompt the [defendant] to make such inquiries as he might deem necessary or prudent for the preservation of his interests.” The court noted that “[i]f the plaintiff intended to pursue a claim only against Milford, there was no reason for him to send a notice of claim to the [defendant] in the first place.” Additionally, the court accorded significant weight to the fact that “the defendant does not claim that [he] was in any way misled by th[e] notice. [The defendant] does not claim that, in reliance on the information in the notice, the [defendant] did not investigate the claim, make inquiries, or obtain such information as he might deem helpful ... in the event [that] the plaintiff . . . commenced an action seeking damages from the state.” The defendant has appealed.

We review the relevant legal standards. “[B]ecause [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary.” (Internal quotation marks omitted.) Haworth v. Dieffenbach, 133 Conn. App. 773, 779, 38 A.3d 1203 (2012). “[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore abasis for granting a motion to dismiss.” (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006).

“The legislature waived the state’s sovereign immunity from suit in certain prescribed instances by the enactment of § 13a-144.” (Internal quotation marks omitted.) Salgado v. Commissioner of Transportation, 106 Conn. App. 562, 566, 942 A.2d 546 (2008). “[Statutes in derogation of sovereign immunity should be strictly construed. . . . Where there is any doubt about their meaning or intent they are given the effect which makes the least rather than the most change in sovereign immunity.” (Internal quotation marks omitted.) C. R. KLewin Northeast, LLC v. Fleming, 284 Conn. 250, 259, 932 A.2d 1053 (2007); see also Bresnan v. Frankel, 224 Conn. 23, 26-27, 615 A.2d 1040 (1992) (applying principle to notice requirement of § 13a-144).

The notice requirement contained in § 13a-144 is a condition precedent and prevents the destruction of sovereign immunity if its requirements are not met. Lussier v. Dept. of Transportation, 228 Conn. 343, 354, 636 A.2d 808 (1994). “[I]injured parties, to meet the requirements of [§ 13a-144], must either individually or through a representative, notify the commissioner that they have filed or intend to file a claim against the state for damages caused by a defective condition.” Warkentin v. Burns, 223 Conn. 14, 18, 610 A.2d 1287 (1992). “The notice [mandated under § 13a-144] is to be tested with reference to the purpose for which it is required. . . . The [notice] requirement . . . was not devised as a means of placing difficulties in the path of an injured person. The purpose [of notice is] . . . to furnish the commissioner with such information as [will] enable him to make a timely investigation of the facts upon which a claim for damages [is] being made. . . . The notice requirement . . . permit[s] the commissioner to gather information to protect himself in the event of a lawsuit. ... [In other words] [t]he purpose of the requirement of notice is to furnish the [commissioner] such warning as would prompt him to make such inquiries as he might deem necessary or prudent for the preservation of his interests, and such information as would furnish him a reasonable guide in the conduct of such inquiries, and in obtaining such information as he might deem helpful for his protection. . . . Unless a notice, in describing the place or cause of an injury, patently meets or fails to meet this test, the question of its adequacy is one for the jury and not for the court, and . . . this question must be determined on the basis of the facts of the particular case.” (Citation omitted; internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 9, 866 A.2d 599 (2005).

The defendant argues that the plaintiff failed to provide adequate notice under § 13a-144 and that the court lacked subject matter jurisdiction over the plaintiffs claim. Specifically, the defendant argues that on the face of the notice letter, the plaintiff only provided notice that he intended to sue the city of Milford, instead of the state. We agree with the defendant.

Section 13a-144 provides in relevant part that “[n]o such action [for injuries caused by a defective highway] shall be brought . . . unless notice of such injury . . . has been given in writing within ninety days thereafter to the commissioner.” Our Supreme Court has interpreted this to mean “that injured parties . . . must . . . notify the commissioner that they have filed or intend to file a claim against the state for damages caused by a defective condition.” (Emphasis added.) Warkentin v. Burns, supra, 223 Conn. 18. In the present case, nowhere in the notice letter does the plaintiff allege that he filed or intended to file a claim against the state. The plaintiff plainly and repeatedly notified the defendant “of [a] [c]laimfor [d]amages against the [c]ity of Milford.” Because the notice requirements of § 13a-144 are strictly construed, we conclude that the letter fails to satisfy the statutory requirements as our Supreme Court has interpreted them.

The trial court accorded substantial weight to the fact that the notice letter did not actually mislead the defendant. Although that fact is relevant to determining whether the letter provided adequate notice, before making such a determination, a trial court must address whether a purported notice patently fails to meet the statutory requirement as a matter of law. See Bresnan v. Frankel, supra, 224 Conn. 27-28. Without more, actual notice is not sufficient to satisfy the requirements of § 13a-144 as a matter of law. See id., 26 n.3 (declining to consider whether failure of notice actually misled commissioner).

Our conclusion is consistent with our Supreme Court’s decision in Warkentin v. Burns, supra, 223 Conn. 14. In that case, the commissioner received actual notice about a fatal motor vehicle accident from multiple third party sources, including two state representatives and a resident of the town where the accident occurred. Id., 17 n.5. Nevertheless, our Supreme Court determined that this constituted inadequate notice that the estate of the decedent would file a claim against the state: although the communications provided details about the accident, the injured party failed to notify the commissioner that a claim would be made. Id., 19. Likewise, in the present case, although the notice letter provides ample details about the accident, it does not provide notice that the plaintiff intended to bring an action against the state.

We reject the trial court’s conclusion that the reference in the notice letter to an “intention to commence suit against the above parties,” in the plural, satisfies the statutory requirements of § 13a-144 because the defendant is referenced in the address and the salutation. The notice letter otherwise twice identifies the city of Milford as the entity against which a claim for damages would be filed; see footnote 4 of this opinion; and the phrase “parties” alone is insufficient to meet the strictly construed requirements of § 13a-144. Similarly, given this exclusive identification of Milford as the entity against which a claim of damages would be filed, we reject the plaintiffs contention that the mere reference in the notice letter to § 13a-144 provides notice that the plaintiff intended to sue the state. This argument is contrary to the plain language of the notice letter.

The notice letter does not satisfy the requirement of § 13a-144 that the plaintiff notify the defendant that he filed or intended to file a claim against the state for damages caused by a defective condition. See Warkentin v. Burns, supra, 223 Conn. 18. Accordingly, we conclude that sovereign immunity bars the plaintiffs claims and deprives the trial court of subject matter jurisdiction over them.

The judgment is reversed and the case is remanded with direction to render judgment dismissing the action against the defendant.

In this opinion the other judges concurred.

       The state and the city of Milford also were named as defendants. The action was dismissed against the state on March 14, 2012—count two of the complaint. Summary judgment was rendered in favor of the city of Milford on July 19, 2010—count three of the complaint. Neither of these judgments are the subject of this appeal. Hereafter, we refer to the commissioner of transportation as the defendant.

       Because we conclude that the trial court lacked subject matter jurisdiction, we do not address the defendant’s alternate claim that the plaintiff commenced suit against an incorrect party.

       We note that generally, the “denial of a motion to dismiss is an interlocutory ruling and, therefore, is not a final judgment for purposes of appeal. . . . The denial of a motion to dismiss based on a colorable claim of sovereign immunity, by contrast, is an immediately appealable final judgment because the order or action so concludes the rights of the parties that further proceedings cannot affect them.” (Citation omitted; internal quotation marks omitted.) Miller v. Egan, 265 Conn. 301, 303 n.2, 828 A.2d 549 (2003).

       The letter is addressed to the defendant personally, both in the inside address and the salutation. The first sentence of the letter states: “Please be advised that this law office has been retained by [the plaintiff] to file a Notice of Claim for Damages against the City of Milford.”
      Below this sentence, underlined, in all capital letters and boldface type font appears the headline, “notice of intention to sue,” centered on the page.
      Below this headline, the following paragraph appears: “Pursuant to Sections 13a-149 and/or 13a-144 of the Connecticut General Statutes, the [plaintiff] hereby gives notice of the personal injuries, losses and damages and intention to commence suit against the above parties. The [plaintiff] provides the following information in accordance with said statutes.” A list of relevant facts, locations and dates follows.
      The final sentence states as follows: “The [plaintiff] will claim damages from the above the City .of Milford, its agents, servants and/or employees for the injuries, losses and all economic and non-economic damages allowed by law.”


author: GRUENDEL, J.

text:
    STATE OF CONNECTICUT v. MARVIN R. WILSON
    (AC 34089)
    Gruendel, Sheldon and Schaller, Js.
    Argued February 5
    officially released May 21, 2013

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

      Sarah Hanna, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, Marc G. Ramia, senior assistant state’s attorney, and Jennifer Lindade, deputy assistant state’s attorney, for the appellee (state).
   Opinion

GRUENDEL, J.

The defendant, Marvin R. Wilson, appeals from the judgments of conviction, rendered after a jury trial, in docket number CR-10-00107596, of strangulation in the second degree in violation of General Statutes § 53a-64bb and, in docket number CR-11-0117455, of criminal violation of a protective order in contravention of General Statutes § 53a-223. On appeal, the defendant claims that the court abused its discretion in consolidating the cases for trial. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. The defendant met the victim, Colleen Gambino, at a Narcotics Anonymous meeting in 2008. Although married, the victim began dating the defendant approximately four months later and moved in with him in October, 2008. She subsequently moved back in with her husband for a period of time before once again moving in with the defendant. The defendant and the victim later moved into the attic apartment of a three-family house located at 102 Gilbert Street in New Haven on March 7, 2010.

The victim was sleeping in bed on the morning of July 12, 2010, when the defendant suddenly shook her. As she awoke, the defendant asked her to call her aunt in Florida “for money.” The victim pretended to call her aunt with the defendant’s cell phone and informed him that her aunt had not answered. When the defendant examined the phone and learned that she had not called her aunt, he became angry and repeatedly called the victim a liar. The victim then informed the defendant that she “wasn’t calling nobody for money,” which made the defendant “real mad.” At that time, the victim also declared, “I’m not sure if I even want to be with you anymore.”

In response, the defendant jumped from a chair and angrily approached the victim. He climbed on top of the victim, who was lying in bed, and began choking her. The defendant placed his hands around her neck and squeezed hard. As a result, the victim felt pain in her neck and was unable to breathe or speak. As he choked her, the victim “was real scared” as to whether she “was going to make it out of there.” The defendant eventually relented and let go of the victim’s throat. He returned to the chair in the room and tore up a birthday card he had bought the victim. As he did, he appeared to be “[o]ut of his mind.” His anger escalated, and when the victim informed him that she was going to contact the police, the defendant forcefully placed a pillow over her face and attempted to smother her. When the victim began kicking a nearby wall, the defendant removed the pillow from her face and “grabbed a knife and said that he was going to stab himself because [the victim] told him [she] was going to have him arrested .... [H]e said he was going to stab himself and then say that [the victim] did it to him.” The defendant then spoke with someone on his cell phone and said, “she’s having me arrested, take care of her.”

The two continued to argue as the victim proceeded first to the kitchen and then to a staircase, where the victim “fell and cut both of [her] arms.” Two young girls who also lived in the house approached the victim and the defendant and stated that they were going to call the police because “[t]hey heard the whole thing.” In response, the defendant told the girls not to listen to the victim because “she’s not on her medication . . . .”

The victim departed the residence and proceeded to the emergency room of the Hospital of Saint Raphael in New Haven, where she placed a 911 call. New Haven police Officer Leslee Witcher responded to the call. When she first encountered the victim, the victim was “very upset. She was shaking. She was crying. She was hysterical.” Witcher observed a laceration on the victim’s right forearm, bruising around the neck area and blotches on her cheeks. The victim remained in pain at that point, as her “neck was killing. My arm was hurting me. I felt light-headed.” After calming her, Witcher took a statement from the victim.

As she sat with the victim, the defendant suddenly entered the hospital. The victim immediately began to tremble and identified him to Witcher as her attacker. At that time, the defendant was arrested.

The victim subsequently was transported to the New Haven police station, where she provided an audio statement to Detective Tammi Means and photographs were taken of her wounds. The photographs depict fresh marks on the victim’s neck and cheeks below her eyes. The victim testified at trial that the bruises on her neck were painful and turned black and blue in the days following the attack. In addition, Asim Tarabar, a physician at Yale-New Haven Hospital, testified that the marks on the victim’s cheeks were called petechiae, which “look . . . like small bruises” and are “common on the upper part of your neck and the face and usually around your eyes, and if it is really severe strangulation the white part of your eye called conjunctiva you can see a bleeding there, as well.” Tarabar explained that petechiae are “small bleeding in around your eyes or around your conjunctivas or upper part of your face and it’s resulting just because of increase of blood flow coming from your back small arteries in your neck and not be able to . . . get rid of the excess of the blood because at the same time when you are compressing someone’s neck you are compressing three types of structures, one, incoming vessels that are bringing blood to outcoming vessels. . . . [I]f you apply enough pressure you compromise airways so there is no oxygen coming to your lungs.”

Following the defendant’s arrest, a protective order issued on July 13, 2010. That order named the victim as the “[protected [pjerson” and the defendant as the respondent. It provided in relevant part that the defendant must “not contact the protected person in any manner, including by written, electronic or telephone contact . . . .”

Despite the existence of that protective order, the defendant stipulated at trial that “[t]here were multiple phone calls made by [him] to [the victim] from the Bridgeport Correctional Facility while the protective order was in effect.” In one telephone conversation, the defendant asked the victim to recant her statement. The victim did exactly that at the defendant’s October 22, 2010 court proceeding, stating in relevant part that “I falsely had [the defendant] arrested, and I’m here to confess that I filed a false report to the court. ... He didn’t violate his protective order because he hasn’t spoken to me.” Despite the victim’s recantation, the court declined to modify the protective order. The victim testified at trial that she made that recantation at the behest of the defendant because, at the time, she still loved him and did not want him to go to jail.

When the victim made no farther efforts to recant her allegations, the defendant sent her a threatening letter. That handwritten letter was admitted into evidence at trial and reads in relevant part: “I was wondering what made you tell all that shit and come to court and say all that shit. . . . [L]ook I mean it. See I say this is not going to end well. See I told my friend what you did and he promise me he would handle it. So I’m not worrying you so fuck up my life. Why didn’t you do this to [your husband] is that who you waiting on. That’s why you doing this. Don’t fucking act like you didn’t do anything wrong. . . . I’m having my friend from Hartford come down. . . . Right now my only hope is to put you on the stand [and] bring out all the time you have lied and all [the] deep dark secret in your closet to get a juror to not see [you] as miss white innocence hurt by black man. Some advice stop getting in cars with strangers. The next time who knows who it could be. . . . You need to call someone and say you change it back to what you said in [the] October [22, 2010 court proceeding]. . . . Why you think this case been going on for so long. They was waiting for you. . . . [D]o you think in the long run it’s going to be worth it. Cause if it come down to me or you you going away. ... No matter what has to be done to help me it will be done. . . . [Y]ou are my enemy and no matter what has to be done to stop [an] enemy will be done. . . . The next time I see or hear from you will be at my trial. More shit is coming out than you think. I have to use everything I have. Like I said my aunt had a P.I. on you for about three months. ... Do you remember I kept saying to you I know more than you think. Okay got to go have no more time for you. Let see how this ends shall we.” Upon receiving that letter on March 19, 2011, the victim contacted the police and the defendant again was arrested.

On June 27, 2011, the state filed a long form information in docket number CR-10-00107596 that charged the defendant with strangulation in the first degree in violation of General Statutes § 53a-64aa. The state also filed a long form information in docket number CR-11-0117455 that charged the defendant with criminal violation of a protective order in violation of § 53a-223 and tampering with a witness in violation of General Statutes § 53a-151. On June 30, 2011, the state filed a motion for joinder of the two informations. That motion averred that (1) “[b]oth informations involve the same defendant and the same complainant”; (2) “[t]he evidence and testimony that would be presented in one trial would be relevant, material, and admissible in the other”; and (3) “[t]he allegations regarding the [violation of the [protective [o]rder and [tjampering with a witness are directly related to the allegation related to the [strangulation case.” The defendant filed a written objection to that motion. After hearing argument from the parties on June 30, 2011, the court granted the motion and the cases were consolidated.

A jury trial followed, at the conclusion of which the jury found the defendant guilty in docket number CR-10-00107596 of the lesser included offense of strangulation in the second degree. With respect to docket number CR-11-0117455, the jury found the defendant guilty of violating a protective order; it acquitted him on the tampering with a witness charge. The court rendered judgments accordingly and sentenced the defendant to a total effective term of six years incarceration, followed by four years of special parole. This appeal followed.

On appeal, the defendant claims that the court improperly consolidated the two cases. “A joint trial expedites the administration of justice, reduces the congestion of trial dockets, conserves judicial time, lessens the burden upon citizens who must sacrifice both time and money to serve upon juries, and avoids the necessity of recalling witnesses who would otherwise be called to testify only once.” (Internal quotation marks omitted.) State v. Booth, 250 Conn. 611, 622, 737 A.2d 404 (1999), cert. denied sub nom. Brown v. Connecticut, 529 U.S. 1060, 120 S. Ct. 1568, 146 L. Ed. 2d 471 (2000). “The trial court has broad discretion in ordering the joinder of offenses and such an order will not be disturbed unless the court’s discretion has been manifestly abused.” (Internal quotation marks omitted.) State v. Greene, 209 Conn. 458, 463, 551 A.2d 1231 (1988). “[A] trial court’s ruling on a motion for joinder of multiple informations for trial implicates Practice Book § 41-19 .... Practice Book § 41-19 provides that [t]he judicial authority may, upon its own motion or the motion of any party, order that two or more informations, whether against the same defendant or different defendants, be tried together.” (Internal quotation marks omitted.) State v. LaFleur, 307 Conn. 115, 154-55, 51 A.3d 1048 (2012).

At trial, the burden rests with the state to prove that joinder will not substantially prejudice a defendant. As our Supreme Court recently clarified, “when charges are set forth in separate informations, presumably because they are not of the same character, and the state has moved in the trial court to join the multiple informations for trial, the state bears the burden of proving that the defendant will not be substantially prejudiced by joinder pursuant to Practice Book § 41-19. The state may satisfy this burden by proving, by a preponderance of the evidence, either that the evidence in the cases is cross admissible or that the defendant will not be unfairly prejudiced pursuant to the Boscarino factors.” State v. Payne, 303 Conn. 538, 549-50, 34 A.3d 370 (2012). On appeal, the burden rests with the defendant to “show that joinder was improper by proving substantial prejudice that could not be cured by the trial court’s instructions to the jury . . . .” (Internal quotation marks omitted.) State v. LaFleur, supra, 307 Conn. 158.

I

“A long line of cases establishes that the paramount concern is whether the defendant’s right to a fair trial will be impaired. Therefore, in considering whether joinder is proper, [the] court has recognized that, where evidence of one incident would be admissible at the trial of the other incident, separate trials would provide the defendant no significant benefit. . . . Under such circumstances, the defendant would not ordinarily be substantially prejudiced by joinder of the offenses for a single trial. . . . Accordingly, we have found joinder to be proper where the evidence of other crimes or uncharged misconduct [was] cross admissible at separate trials.” (Citations omitted; internal quotation marks omitted.) Id., 155.

The state submits, and we agree, that the evidence in each case was cross admissible. The evidence submitted to substantiate the state’s case in docket number CR-11-0117455 was relevant to demonstrate the defendant’s consciousness of guilt in the strangulation case. In particular, the jury could have found, from evidence adduced at trial indicating that the defendant made telephone calls to the victim directing her to recant her prior allegations and sent her the threatening letter, that the defendant attempted to influence the victim’s testimony against him. “[E]vidence of threats against witnesses is generally admissible ... on the theory that the making of such threats evinces a consciousness of guilt.” (Internal quotation marks omitted.) State v. Robertson, 254 Conn. 739, 756, 760 A.2d 82 (2000).

In addition, the evidence in the strangulation case was relevant to the state’s case in docket number CR-11-0117455. Although “[e]vidence of other crimes, wrongs or acts of a person is inadmissible to prove the bad character or criminal tendencies of that person”; Conn. Code Evid. § 4-5 (a); “[e]vidence of other crimes, wrongs or acts of a person is admissible ... to prove intent, identity, malice, motive . . . .” Conn. Code Evid. § 4-5 (b). The jury reasonably could have found the evidence that the defendant previously had strangled the victim indicative of both his malice toward her and his motive for violating the protective order and allegedly tampering with a witness. See State v. Rosado, 107 Conn. App. 517, 530, 945 A.2d 1028, cert. denied, 287 Conn. 919, 951 A.2d 571 (2008). Because the evidence in the two cases was cross admissible, we cannot say that the court abused its discretion in granting the motion for joinder.

II

Even if we were to conclude that the evidence was not cross admissible, the defendant could not prevail. To do so, the defendant must demonstrate “that joinder was improper by proving substantial prejudice that could not be cured by the court’s instructions to the jury.” (Internal quotation marks omitted.) State v. LaFleur, supra, 307 Conn. 158. He has not done so.

A

Preliminarily, we note that the defendant cannot establish the requisite harm with respect to either of the offenses charged in docket number CR-11-0117455. It is undisputed that the defendant was acquitted of the tampering with a witness charge. It further is undisputed that the defendant stipulated that he contacted the victim by telephone on numerous occasions while the protective order was in effect, a plain violation thereof. Accordingly, he cannot show that he was substantially prejudiced by the joinder of the cases with respect to the charged offenses in docket number CR-11-0117455.

B

The remaining question is whether the defendant was substantially prejudiced with respect to the strangulation charge set forth in docket number CR-10-00107596. That analysis entails consideration of the Boscarino factors. See footnote 3 of this opinion.

Applying those factors, we conclude that the defendant cannot establish that he was prejudiced by the joinder of the two cases. First, the charges consolidated for trial involved discrete, easily distinguishable factual scenarios. The strangulation charge was predicated on the physical attack of the victim in the attic apartment on the morning of July 12, 2010. The protective order and tampering charges arose from the defendant’s conduct in subsequent months when he repeatedly telephoned the victim from the correctional facility and sent her the threatening letter on March 18, 2011. Second, the conduct underlying the charged offenses in docket number CR-11-0117455 “was not so brutal or shocking as to create a substantial risk that the jury, with explicit instructions to treat each offense separately, would nevertheless treat the evidence cumulatively.” State v. Yopp, 35 Conn. App. 740, 753, 646 A.2d 298 (1994). “Whether one or more offenses involve brutal or shocking conduct likely to arouse the passions of the jurors must be ascertained by comparing the relative levels of violence used to perpetrate the offenses charged in each information.” State v. Davis, 286 Conn. 17, 29-30, 942 A.2d 373 (2008). We already have concluded that the defendant cannot demonstrate prejudice with respect to the protective order and tampering charges. The conduct involved in those charges, while serious, is nowhere near as brutal or shocking as the act of placing one’s hands around the throat of another and squeezing so hard that the victim cannot speak or breathe. Third, the trial, which consisted of only two days of evidence, eight witnesses and thirteen exhibits, was not so long or complex as to require severance.

In addition, the record discloses that the trial court repeatedly cautioned the jury to consider each charge separately in reaching its verdict. “[Although a curative instruction is not inevitably sufficient to overcome the prejudicial impact of [inadmissible other crimes] evidence . . . where the likelihood of prejudice is not overwhelming, such curative instructions may tip the balance in favor of a finding that the defendant’s right to a fair trial has been preserved.” (Citations omitted; internal quotation marks omitted.) State v. Jennings, 216 Conn. 647, 660, 583 A.2d 915 (1990); see also State v. Gupta, 297 Conn. 211, 223, 998 A.2d 1085 (2010) (“[t]he defendant bears a heavy burden of showing that . . . any resulting prejudice [of joinder] was beyond the curative power of the court’s instructions” [internal quotation marks omitted]). In light of the foregoing, the court did not abuse its discretion in consolidating the two cases for trial.

The judgments are affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-64bb (a) provides: “A person is guilty of strangulation in the second degree when such person restrains another person by the neck or throat with the intent to impede the ability of such other person to breathe or restrict blood circulation of such other person and such person impedes the ability of such other person to breathe or restricts blood circulation of such other person.”

       General Statutes § 53a-223 (a) provides: “A person is guilty of criminal violation of a protective order when an order issued pursuant to subsection (e) of section 46b-38c, or section 54-lk or 54-82r has been issued against such person, and such person violates such order.”

       See State v. Boscarino, 204 Conn. 714, 720-24, 529 A.2d 1260 (1987). “The Boscarino factors are (1) whether the charges involve discrete, easily distinguishable factual scenarios; (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant’s part; and (3) the duration and complexity of the trial.” (Internal quotation marks omitted.) State v. Fana, 109 Conn. App. 797, 803-804, 953 A.2d 898, cert. denied, 289 Conn. 936, 958 A.2d 1246 (2008).

       The defendant, in his reply brief, alleges that “the trial prosecutor did not seek joinder on the basis that the evidence in both cases is cross admissible . . . .” He is mistaken. The June 30, 2011 motion for joinder filed by the state specifically averred that “[t]he evidence and testimony that would be presented in one trial would be relevant, material, and admissible in the other.”

       The letter and its envelope were admitted into evidence as state’s exhibit 11. The envelope bears a postal stamp date of March 18,2011, and the victim at trial testified that she received that letter the following day.


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. RONALD GERMAIN
    (AC 34440)
    DiPentima, C. J., and Bear and Flynn, Js.
    Argued March 6
    officially released May 21, 2013

      Ronald Germain, pro se, the appellant (defendant).

      Nancy L. Chupak, senior assistant state’s attorney, with whom, on the brief, were Timothy J. Liston, state’s attorney, and Marie Villar, special deputy assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Ronald Germain, appeals from the judgment of conviction, rendered after a trial to the court, of failure to comply with the passing on the right rule in violation of General Statutes § 14-233 and traveling unreasonably fast in violation of General Statutes § 14-218a, both of which are motor vehicle infractions. On appeal, the defendant claims that he is not guilty of those infractions and that there was no evidence, other than “he said, she said” to sustain his conviction. He also claims that the trial judge was biased and would not let him present his evidence. Because the defendant has failed to furnish us with transcripts of the prior proceedings, we are unable to examine the merits of his claims, and, thus, we have no basis not to affirm the trial court’s judgment.

The following facts appear in the record. On July 2, 2011, Officer Anthony Valenti of the Windsor police department issued a $254 complaint ticket to the defendant, charging him with the infractions of failure to comply with the passing on the right rule and traveling unreasonably fast. The ticket noted that the defendant had committed these infractions at 10:35 a.m. on route 159 at the intersection with Barber Street in Windsor, and that he had been traveling at a rate of speed of thirty-six miles per hour in a thirty-five mile per hour zone. The road conditions were dry, traffic was light and visibility was clear. The defendant pleaded not guilty to these charges. A hearing before a magistrate was held on December 19, 2011, where both Valenti and the defendant testified. At the close of the hearing, the magistrate found the defendant guilty of both infractions, but reduced his fine to $70. The defendant then requested a trial de novo, which was conducted on February 9, 2012. Again, both Valenti and the defendant testified. The court found the defendant guilty of both infractions and ordered him to pay a $75 fine. This appeal followed.

Because the defendant has failed to provide us with transcripts of the prior proceedings, we are unable to review the defendant’s claims on appeal. “It is an appellant’s duty to provide an adequate record for our review, including the transcript and an electronic version of the transcript. See Practice Book §§ 61-10 [and] 63-8 . . . .” Perez v. D & L Tractor Trailer School, 117 Conn. App. 680, 691, 981 A.2d 497 (2009), cert. denied, 294 Conn. 923, 985 A.2d 1062 (2010). Without the transcripts, we are unable to discern what transpired in the prior proceedings or to conduct a meaningful review of the issues on appeal.

The judgment is affirmed.

       General Statutes § 14-233 provides: “The driver of a vehicle may overtake and pass upon the right of another vehicle only when conditions permit such movement in safety and under the following conditions: (1) When the vehicle overtaken is making or has signified the intention to make a left turn; (2) when lines of vehicles traveling in the same direction in adjoining traffic lanes have come to a stop or have reduced their speed; (3) upon a one-way street free from obstructions and of sufficient width for two or more lines of moving vehicles; (4) upon a limited access highway or parkway free from obstructions with three or more lanes provided for traffic in one direction. Such movement shall not be made by driving off the pavement or main-traveled portion of the highway except where lane designations, signs, signals or markings provide for such movement. Violation of any provision of this section shall be an infraction.”

       General Statutes § 14-218a provides in relevant part: “(a) No person shall operate a motor vehicle upon any public highway of the state, or road of any specially chartered municipal association ... or upon a private road on which a speed limit has been established in accordance with this subsection ... at a rate of speed greater than is reasonable, having regard to the width, traffic and use of highway, road or parking area, the intersection of streets and weather conditions. . . . Any speed in excess of such limits, other than speeding as provided for in section 14-219, shall be prima facie evidence that such speed is not reasonable . . . .”

       Valenti prepared a notarized supplemental report, also on July 2, 2011, which is contained in the trial court file. The report states that Valenti “was traveling south on [route] 159 toward Barber Street in the left lane behind another vehicle [and that his] radar unit display showed [his] speed [to be thirty-five miles per hour].” It also states that the defendant’s vehicle was behind him and that it “changed lanes (left to right) accelerated and passed [him] on the right at a high rate of speed.” The report then states that Valenti pulled over the defendant’s vehicle and explained to the defendant that he, Valenti, had been “traveling at [thirty-five miles per hour] and [the defendant] passed [him] on [the] right which clearly shows he was traveling in excess of [thiriy-five miles per hour].” The report also states that the defendant admitted to Valenti that he had been traveling at a speed greater than thirty-five miles per hour.

       Practice Book § 61-10 (a) provides: “It is the responsibility of the appellant to provide an adequate record for review. The appellant shall determine whether the entire trial court record is complete, correct and otherwise perfected for presentation on appeal. For purposes of this section, the term ‘record’ is not limited to its meaning pursuant to Section 63-4 (a) (2), but includes all trial court decisions, documents and exhibits necessary and appropriate for appellate review of any claimed impropriety.”

        Practice Book § 63-8 (a) provides in relevant part: “[T]he appellant shall . . . order . . . from the official reporter a transcript and an electronic version of a transcript of the parts of the proceedings not already on file which the appellant deems necessary for the proper presentation of the appeal. . . .”


text:
    FELIPE MULERO v. BOARD OF EDUCATION OF THE CITY OF BRIDGEPORT ET AL.
    (AC 34847)
    DiPentima, C. J., and Bear and Sheldon, Js.
    Argued March 7
    officially released May 21, 2013

      Felipe Mulero, pro se, the appellant (plaintiff).

      Rachel Volkman Kushel, for the appellee (named defendant).
   Opinion

PER CURIAM.

In this case, the plaintiff, Felipe Mul-ero, appeals from the trial court’s rendering of summary judgment in favor of the defendant board of education of the city of Bridgeport (board), his former employer, in an action seeking monetary and injunctive relief for alleged breach of contract and violation of the Connecticut Fair Employment Practices Act, General Statutes § 46a-51 et seq., in connection with the board’s alleged release of derogatory information about the plaintiff, in violation of the February 6, 2003 agreement under which he resigned from his position as a certified bilingual educator. The plaintiff claims, inter alia, that the trial court erred in concluding that the board was entitled to judgment as a matter of law under the doctrine of res judicata, on the basis of his prior alleged bringing and prosecution to a final judgment on the merits of a federal action raising the same two claims, which were affirmed on appeal. We agree with the trial court that the plaintiff’s claims are barred by res judicata and thus conclude that its judgment must be affirmed.

“Under the doctrine of res judicata, or claim preclusion, a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim. A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose. . . . The doctrine of res judicata [applies] ... as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction .... The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it.” (Citations omitted; internal quotation marks omitted.) Himmelstein v. Bernard, 139 Conn. App. 446, 453, 57 A.3d 384 (2012).

The plaintiff commenced this action on January 18, 2012. Although his complaint was not subdivided into separate counts, it clearly alleged that on December 14, 2005, the board breached the February 6, 2003 agreement under which he resigned from his position as a certified bilingual instructor by releasing “derogatory, unfounded and untrue information” about him which allegedly harmed his character, reputation and career. As relief for his alleged injuries and losses, which he claims to have resulted from the board’s breach of contract and violation of the Connecticut Fair Employment Practices Act, the plaintiff seeks reinstatement to his former position or to a comparable position for which he is qualified with back pay to February 6, 2003.

In its motion for summary judgment, the board claimed, inter alia, that the plaintiffs present action was virtually identical to an earlier federal action that he had filed in the United States District Court for the District of Connecticut, in which summary judgment had been granted by Judge Peter Dorsey on June 22, 2010. See Mulero v. Board of Education, United States District Court, Docket No. 3:07-CV-1206 (PCD) (D. Conn. June 22, 2010), aff'd, 448 Fed. Appx. 129 (2d Cir. 2011). The trial court agreed and, on that basis, issued a short form order granting the board’s motion on the ground that the plaintiffs claims were barred by res judicata. This appeal followed.

“Our review of [a] trial court’s decision [on a] motion for summary judgment is plenary. . . . [Likewise] [t]he applicability of res judicata . . . presents a question of law over which we employ plenary review.” (Citation omitted; internal quotation marks omitted.) Savvidis v. Norwalk, 129 Conn. App. 406, 410, 21 A.3d 842, cert. denied, 302 Conn. 913, 27 A.3d 372 (2011).

Upon reviewing the summary judgment decision by Judge Dorsey and comparing the plaintiffs complaints in this case and in the federal action, it is apparent that the underlying cause of action which the plaintiff sought to present in his federal action is based upon the same set of operative facts as the claims he now seeks to prosecute in this action. In sum and in substance, they are based upon the board’s release of records concerning the plaintiffs background, in response to a request for the same from the state board of education in connection with the plaintiffs application for state certification in late 2005. As a result of the release of this information, allegedly in violation of the board’s promise to expunge all such information from the plaintiffs record as part of his resignation agreement of February 6, 2003, the plaintiffs application for certification was denied. Here, because the plaintiff has previously brought claims against the board based upon the same cause of action as that which underlies his present claims, and has prosecuted those claims to a final judgment on the merits, he is forever barred from pursuing these claims again.

The judgment is affirmed.

       The plaintiff had initially also named the Connecticut Education Association as an additional defendant but withdrew his claim as to that defendant shortly after commencing this action.


text:
    LUCIEN B. PADAWER v. RONEN YUR ET AL.
    (AC 34498)
    Gruendel, Lavme and Alvord, Js.
    Argued March 19
    officially released May 21, 2013

      Kent M. Miller, for the appellants-cross appellees (defendants).

      Luden B. Padawer, pro se, the appellee-cross appellant (plaintiff).
   Opinion

GRUENDEL, J.

This case arises from a dispute involving the sale of a retail store. Following a bench trial, the trial court rendered judgment in favor of the self-represented plaintiff, Lucien B. Padawer. Although the plaintiff and the defendants advance a panoply of claims on appeal, one is dispositive, and thus, is the only one we will discuss. The defendants, Ronen Yur and Yurway Design, LLC (Yurway), claim that the court erred in denying their motion to dismiss for failure to make out a prima facie case. Specifically, the defendants argue that the court improperly found that the plaintiff had standing, in his individual capacity, to pursue an action seeking redress for alleged harm to his limited Lability company. We reverse the judgment of the trial court and remand the case to the trial court with direction to dismiss the action.

The following facts are relevant to the resolution of the defendants’ claim. In 2007, the plaintiff acquired sole membership of Clare Jones, LLC, a retail business selling women’s clothing and accessories. In late 2008, the plaintiff, hoping to sell the store so that he would no longer be apart from his family in Colorado, began negotiations with Yur regarding a potential sale. Over several months, the plaintiff and Yur exchanged multiple proposals of the terms of such a sale, but never signed a contract of sale. Nonetheless, on March 1, 2009, Yurway, with Yur serving as a guarantor, assumed the store’s lease. Since assuming the lease, Yur has run the store, despite the parties’ never having executed a contract of sale.

On March 18, 2011, the plaintiff filed his second revised complaint, alleging that the defendants had breached an oral agreement to purchase the store for a 50 percent share of the store’s monthly profits, up to the amount of $50,000, and that the defendants had been unjustly enriched to his detriment. The defendants, in their answer, denied these allegations. The matter proceeded to a bench trial beginning on February 17, 2012.

Over the course of the four day trial, the plaintiff introduced as exhibits various documents and proposed drafts of sales contracts, all of which indicated that he was acting as an agent of Clare Jones, LLC, not as an individual. The first paragraph of the draft “business and asset purchase agreement” states that the agreement “is entered into ... by and between acting herein by Clare Jones, LLC acting herein by Lucien B. Padawer, its member . . . .” The signature page of this draft also names “Clare Jones, LLC” as the “seller” and “Lucien B. Padawer” as “its [m]ember.” Furthermore, the agreement assigning the store’s lease to Yurway similarly indicates that Clare Jones, LLC, was the leaseholder and the entity assigning the lease to the defendants, not the plaintiff individually. Also accepted into evidence was an “annual trial balance” sheet for “Clare Jones LLC,” which lists the value of the business’ assets, including “[gjoodwill,” “[f]umiture & [fixtures” and “[inventory.” Consistent with these documents, the plaintiff testified at trial that he purchased the limited liability company, Clare Jones, LLC, in two parts over the course of 2007, and that prior to that time, he had no involvement in the business whatsoever. There was no evidence or testimony at trial that the plaintiff individually owned the store or that any of the assets located in the boutique belonged to the plaintiff individually.

After the plaintiff rested his case, the defendants moved to dismiss for failure to make a prima facie case because they argued that the plaintiff had not offered any evidence that he was the proper party to bring the action, as it was his limited liability company that had suffered the alleged harm rather than the plaintiff individually. The court summarily denied the motion in an oral decision from the bench.

Ultimately, the court found “the issues for the plaintiff’ and rendered judgment in his favor in the amount of $44,000, which appeared to represent the $50,000 value of the business assets minus a $6000 credit for “partial payment of inventory sold” while the store was under Yur’s control. The court, in its memorandum of decision, explained that it credited a draft purchase agreement dated February 6, 2009, as evidence that the parties had reached an agreement on a sale price for the store of $50,000. As explained by the court, the $50,000 represented the value of the “business assets,” but did not include any rights to the limited liability company itself. The defendants now appeal from this judgment of the court.

On appeal, the defendants claim that the court erred in denying their motion to dismiss for failure to make out a prima facie case because the plaintiff was not the party allegedly aggrieved by the defendants’ actions, but rather it was the limited liability company owned by the plaintiff that suffered the harm of which the plaintiff complained. Accordingly, the defendants argue, the plaintiff lacked standing sufficient to invoke the subject matter jurisdiction of the court. The plaintiff argues that he, not the limited liability company, owned the store, and that, regardless, “there [is] no material distinction whatsoever between [his] owning the store [and his limited liability company] owning the store.” We agree with the defendants.

“If, on the trial of any issue of fact in a civil action tried to the court, the plaintiff has produced evidence and rested his or her cause, the defendant may move for judgment of dismissal, and the judicial authority may grant such motion, if in its opinion the plaintiff has failed to make out a prima facie case. ... A prima facie case ... is one sufficient to raise an issue to go to the trier of fact. ... In order to establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove. ... In evaluating [the trial court’s decision on] a motion to dismiss, [t]he evidence offered by the plaintiff is to be taken as true and interpreted in the fight most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiff’s] favor. . . . Whether the plaintiff has established a prima facie case entitling the plaintiff to submit a claim to a trier of fact is a question of law over which our review is plenary.” (Citations omitted; internal quotation marks omitted.) Sullivan v. Thorndike, 104 Conn. App. 297, 302, 934 A.2d 827 (2007), cert. denied, 285 Conn. 907, 908, 942 A.2d 415, 416 (2008).

“[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute. . . . One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. . . . [A]s a general rule, a plaintiff lacks standing unless the harm alleged is direct rather than derivative or indirect. . . .

“It is axiomatic that a party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim. . . . Standing is the legal right to set judicial machinery in motion. . . . Standing requires no more than a colorable claim of injury; a [party] ordinarily establishes . . . standing by allegations of injury. . . .

“The requirement of directness between the injuries claimed by the plaintiff and the conduct of the defendant also is expressed, in our standing jurisprudence, by the focus on whether the plaintiff is the proper party to assert the claim at issue. . . . Thus, to state these basic propositions another way, if the injuries claimed by the plaintiff are remote, indirect or derivative with respect to the defendant’s conduct, the plaintiff is not the proper party to assert them and lacks standing to do so. [When], for example, the harms asserted to have been suffered directly by a plaintiff are in reality derivative of injuries to a third party, the injuries are not direct but are indirect, and the plaintiff has no standing to assert them. ...

“A limited liability company is a distinct legal entity whose existence is separate from its members. . . . [It] has the power to sue or to be sued in its own name; see General Statutes §§ 34-124 (b) and 34-186; or may be a party to an action brought in its name by a member or manager. ... A member or manager, however, may not sue in an individual capacity to recover for an injury based on a wrong to the limited liability company. . . . [A] member or manager of a limited liability company is not a proper party to a proceeding by or against a limited liability company solely by reason of being a member or manager of the limited liability company, except where the object of the proceeding is to enforce a member’s or manager’s right against or liability to the limited liability company or as otherwise provided in an operating agreement . . . .” (Citations omitted; internal quotation marks omitted.) O’Reilly v. Valletta, 139 Conn. App. 208, 213-15, 55 A.3d 583 (2012), cert. denied, 308 Conn. 914, 61 A.3d 1101 (2013).

Taking the evidence offered during the plaintiffs case-in-chief in the light most favorable to him and drawing every reasonable inference in his favor, we cannot conclude that the plaintiff had standing to bring this action. The documents admitted into evidence at trial, and even the plaintiffs own testimony, indicate that Clare Jones, LLC, was the contemplated party to the contract with the defendants, and that the assets intended to be transferred through the execution of that contract were assets belonging to the limited liability company, rather than the plaintiff individually. If the defendants’ alleged breach caused any harm, therefore, it was to Clare Jones, LLC, not to the plaintiff in his individual capacity. Although the plaintiff is the sole member of Clare Jones, LLC, that does not impute ownership of the limited liability company’s assets to the plaintiff. See General Statutes § 34-167 (a) (“Property . . . acquired by a limited liability company is property of the limited liability company and not of its members individually. A member has no interest in specific limited liability company property.”). His position as sole member, also, does not provide him with standing to recover individually for harm to the limited liability company. We, accordingly, conclude that the plaintiff did not have standing to bring the action. The court, therefore, improperly denied the defendants’ motion to dismiss for failure to make out a prima facie case.

The judgment is reversed and the case is remanded with direction to render judgment dismissing the action.

In this opinion the other judges concurred.

       The defendants filed several special defenses and a counterclaim, none of which are relevant to the claim we address in this opinion.

       The plaintiff, in his complaint, alleged that the defendants had breached a consulting contract, but the evidence adduced at trial indicated that the contemplated agreement was more accurately denominated as a contract of sale. As stated by the court: “Both parties understood it was the sale of the store.” Accordingly, as counsel for the defendants explained during oral argument before this court, the issue of whether the plaintiff lacked standing to pursue this action did not become apparent until he rested his casein-chief.


text:
    IN RE JOURNEY L. ET AL.

    (AC 35178)
    Lavme, Keller and Bishop, Js.
    Argued April 8
    officially released May 7, 2013

      David J. Reich, for the appellant (respondent mother).

      Susan T. Pearlman, assistant attorney general, with whom were Benjamin Zivyon, assistant attorney general, and, on the brief, George Jepsen, attorney general, and Michael Besso, assistant attorney general, for the appellee (petitioner).

      Michael F. Miller, for the minor children.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79a-12, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

       May 7, 2013, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

PER CURIAM.

In this termination of parental rights appeal involving four minor children, the respondent mother claims that the trial court failed (1) to correctly apply the relevant law regarding her alleged failure to achieve a sufficient degree of personal rehabilitation by improperly considering her ability to parent all four children together rather than her ability to parent each child individually, and (2) to apply relevant law in its determination that it is in the best interests of all four children to terminate her parental rights instead of determining that it was in the best interest of each individual child. We affirm the judgments of the trial court.

The underlying facts and procedural history are set forth in the court’s oral decision. Briefly stated, the respondent is the biological mother of the four minor children, J, bom in 2005, S, bom in 2007, K, bom in 2008, and R, bom in 2010. J, S and K have the same biological father. R has a different biological father. On October 8, 2010, an order granting temporary custody of the children to the petitioner, the commissioner of children and families (commissioner), was granted and later sustained on October 15, 2010. On January 6, 2011, the children were adjudicated neglected and, on April 14,2011, committed to the care and custody of the commissioner.

Thereafter, on December 6, 2011, the commissioner filed petitions for termination of parental rights as to each of the four children on the ground that the child previously had been found to be neglected and that the respondent and each father had failed to achieve a degree of personal rehabilitation sufficient to encourage the belief that, within a reasonable time, they could assume a responsible position in the life of the child. The respondent and both fathers were served, and counsel was appointed to represent them. Counsel, who also served as their guardian ad litem, was appointed for the children. Subsequently, on February 15, 2012, the father of J, S and K consented to the termination of his parental rights, and, after a canvass by the court, his parental rights to the three children were terminated. On May 24, 2012, R’s biological father consented to the termination of his parental rights, but the court withheld judgment on the petition to terminate his parental rights, pending a hearing on the petitions to terminate the respondent’s parental rights. On October 23, 2012, through its oral decision, the court terminated the parental rights of R’s father and terminated the parental rights of the respondent as to her four children. This appeal followed.

“Our standard of review on appeal from a termination of parental rights is whether the challenged findings are clearly erroneous. . . . The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in fight of the evidence in the whole record, clearly erroneous.” (Internal quotation marks omitted.) In re Aziza S.-B., 138 Conn. App. 639, 657, 53 A.3d 1001 (2012).

In its oral decision, the court noted that, in the petitions, the commissioner alleged that the department of children and families (department) had made reasonable efforts to reunify the children with the respondent or that the respondent was unable or unwilling to benefit from reunification efforts; that the children had been found in a prior proceeding to have been neglected and uncared for; that the respondent had failed to achieve the degree of personal rehabilitation that would encourage the belief that, within a reasonable time, considering the ages and needs of the children, the respondent could assume a responsible position in the fives of the children; and that it is in the children’s best interest to terminate the respondent’s parental rights. In making these allegations, the commissioner essentially tracked the statutory scheme for the termination of parental rights pursuant to General Statutes § 17a-112 (j) (3) (B) (i).

In its oral decision, the court noted that it heard evidence from two therapists, a sexual abuse evaluator, the assigned department caseworker, and David Tobin, whom the court recognized as an expert in clinical and forensic psychology. The court noted, as well, that it heard testimony from the provider of supervised visitation and integrative parenting and from the pastor of the church that the respondent attended. The court also received numerous exhibits into evidence.

With respect to the allegation that the respondent had failed to achieve personal rehabilitation pursuant to § 17a-112 (j) (3) (B) (i), the court made specific findings as to the circumstances and deficits of each child and the respondent’s failings in regard to his or her care. The court found, as to R, that following her birth, the Lawrence & Memorial Hospital had significant concerns “based on the mother’s noncompliance with prenatal care and mother’s failure to maintain her own diabetic controls.” The court noted that R was bom with respiratory distress, sugar control issues and feeding problems and that she had been in the neonatal intensive care unit. As to S and K, the court found that both children had been diagnosed with a condition known as “failure-to-thrive” and that the respondent had missed several follow-up appointments, including three referrals to a specialist for S, and that S had scoliosis and a vertebral fusion, a severe hearing deficit as well as bilateral hip dysplasia, which required corrective surgery: The court observed, as well, that both J and S had serious emotional and behavioral issues. The court noted that K’s pediatrician had reported to the department that K had a feeding tube, and that the respondent was not following up as necessary with the Connecticut Children’s Medical Center regarding care of the tube. The court also found that K also had significant language delays. Finally, in regard to the condition and specialized needs of the children, the court noted that J had to have part of a lung removed and was found to have toxic lead levels. The court concluded that before the children were removed from the respondent’s care, conditions in the family home were “chaotic, dangerous, and the children’s needs were unmet.” Since their removal, the court observed, the children’s medical and behavioral issues have improved.

As to the respondent’s failure to achieve personal rehabilitation, the court found that Tobin testified that the respondent “had inadequate coping skills, little tolerance for frustration, and signs of a severe impairment in her reality testing. He further noted that [the respondent] had a personality disorder with dependent features and little insight into the way she neglected her children.” While the court noted that the respondent had positive and reciprocated feelings for J and S, the court also noted that the respondent “did not understand her children’s special needs or have the capacity to meet them.”

With respect to the specific steps the respondent was ordered to take in order to address her parenting deficits, the court found that, while she had begun individual therapy with a therapist with whom she developed a positive relationship, the respondent refused to engage with a different therapist once her initial therapist moved from Norwich to Colchester or to travel the relatively short distance from Norwich to Colches-ter to continue with her original therapist. Tobin considered the respondent’s failure to continue individual therapy as indicative of her “inability to understand her children’s special needs and to develop the capacity to meet them.” The court further observed that Tobin had testified persuasively that the respondent had little insight into her parenting deficits and had been unsuccessful in her therapeutic interventions. The court concluded: “The department has made reasonable efforts to reunify with [the respondent], but [she] has been unable to obtain the necessary insight or skills to parent her children, and there is no reasonable prospect that [the respondent] will obtain them or rehabilitate sufficiently in the foreseeable future to play a responsible position in the life of her children.” The court found, as well, that it was in the best interest of the children that the respondent’s parental rights, as to all of them, be terminated.

The essence of the respondent’s claim on appeal is that the court did not focus on her efforts to achieve rehabilitation as to each child or her ability to care for each child but, rather, made an assessment only of her ability to care for the children as a group. It is true, as the respondent points out, that, in stating its conclusions, the court observed that the respondent did not have the ability to care for all four children, and it is also true that some of the evidence adduced at trial pointed to the respondent’s inability to care for four children with specialized needs and deficits. Notwithstanding the court’s choice of language, however, it is clear from the court’s oral decision that the court considered the respondent’s failure to achieve personal rehabilitation as pertaining to her unsuitability to parent any one of these children and not simply the four children as a group. Additionally, as to the court’s choice of language: “The critical issue is not how the court reported its findings but whether sufficient evidence [in the record] supported the court’s finding that the petitioner proved, by clear and convincing evidence . . . that termination was in the best interests of the children.” (Citation omitted; internal quotation marks omitted.) In re Messiah S., 138 Conn. App. 606, 629, 53 A.3d 224, cert. denied, 307 Conn. 935, 56 A.3d 712 (2012).

The court’s decision clearly implies that the court found that the respondent’s failure to continue in therapy, her lack of insight, and her impaired reality testing bear on her capacity to be a parent. In short, while the court expressly found the respondent incapable of parenting all four children, within its finding is the clear implication that the respondent lacks the basic insights and capacities to parent any of the individual children, each of whom the court found had significant deficits and attendant needs that were unmet by the respondent. The record provides clear and convincing support for the court’s conclusions in this regard. Similarly, the court’s conclusions regarding the best interests of the children flowed, reasonably, from its assessment of the children’s needs and the respondent’s inability to meet them. For the foregoing reasons, we find no fault with the court’s factual conclusions and legal analysis leading to its determination to terminate the respondent’s parental rights as to each child.

The judgments are affirmed.

       We note that, pursuant to Practice Book § 67-13, counsel for the minor children, who also served as their guardian ad litem, filed a statement urging this court to affirm the judgment of the trial court.

       In this opinion, we refer to the respondent mother as the respondent, as neither of the fathers appealed from the judgment terminating their parental rights.