text:
    DPF FINANCIAL HOLDINGS, LLC v. AMY LYONS ET AL.
    (AC 32107)
    Harper, Beach and Schaller, Js.
    Argued February 22
    officially released June 14, 2011

      Christian A. Sterling, for the appellant (named defendant).

      Matthew D. Gordon, with whom, on the brief, was Deirdre Dwyer Stokes, for the appellees (plaintiffs).
   Opinion

SCHALLER, J.

The defendant Amy Lyons appeals from the judgment of contempt rendered against her in an action brought by the plaintiff DPF Financial Holdings, LLC, to recover damages for trespass. Specifically, the defendant claims that the court abused its discretion by improperly ordering her to pay to the plaintiff (1) $5000 in compensatory damages and (2) attorney’s fees in the amount of $1200. We reverse in part the judgment of the trial court.

The court found the following relevant facts. The plaintiff owns two parcels of property in Killingly, lots 1 and 2, which it bought in 2006. The defendant purchased from the same grantor a parcel of property adjacent to the plaintiffs parcels after the plaintiff purchased them. The defendant’s parcel consists of lots 3 and 4, which are located behind the plaintiffs property. The defendant’s property was being used as a horse farm at the time the plaintiff purchased lots 1 and 2. The defendant holds an “access easement” over the plaintiffs lot 2, which provides access to her lots.

The common grantor, Valley View Riding Stables, had received subdivision approval with respect to all four lots. The approved subdivision map is on file in the Killingly town clerk’s office. After purchasing lots 1 and 2, the plaintiff observed that the fence separating its property from the defendant’s appeared to be partially located on the plaintiffs property rather than running along the common boundary. The plaintiff brought the issue to the attention of the common grantor,, which informed the plaintiff that it would have to rectify the situation with the defendant.

Almost immediately after the defendant purchased her lots, the parties’ relationship became contentious. Either the defendant or her agents moved the pins marking the boundary of the plaintiffs lot 2. At the time that the common grantor conveyed the two lots to the plaintiff, the legal description of the lots comported with the size and the boundaries contained on the site plan approved by the town. A portion of the defendant’s fence was located on the plaintiffs property thereby constituting a trespass. The court credited the testimony of Robert Hellstrom, who had placed the boundary pins in accordance with the legal description on the deeds and the town approved subdivision map.

The defendant, whose farm is located at a higher elevation than the plaintiffs lots, constructed a pig pen from a modified commercial trailer and placed it close to the plaintiffs property without the requisite permits. The pen obstructed the view from the plaintiffs property and housed pigs, chickens and other fowl close to the plaintiffs property line. Although the plaintiff had constructed a berm to prevent erosion, the defendant or her agents removed it, causing erosion of the plaintiffs property. The defendant also deposited animal remains and bones on the plaintiffs property, as well as discarded construction materials. By placing her animal pen so close to the plaintiffs property, the defendant directed animal fecal matter to flow from the pen onto the plaintiffs property. In addition, the animals continually trespassed on the plaintiffs property. The trespasses have resulted in the physical destruction of certain areas of the plaintiffs property.

On December 1, 2008, the court granted the plaintiffs application for a prejudgment temporary injunction, ordering the defendant to “immediately cease and desist from trespassing upon the plaintiffs land.” On January 6,2009, the plaintiff filed a motion for contempt alleging that the defendant continued to violate the court’s order by adding livestock, erecting feed storage facilities and continuing to direct debris onto the plaintiffs property. On November 4, 2009, the court held a hearing on the plaintiffs motion for contempt. At that hearing, Fleming testified that when it rained, fecal matter would flow onto the plaintiffs property, the defendant failed to erect a berm along the entire common boundary, chickens roamed and laid eggs on the plaintiffs property and the defendant left rusty construction debris near the property boundary causing rust to wash onto the plaintiffs property.

The defendant testified that since the court order, she had not trespassed onto the plaintiffs property and that she had made the necessary improvements to address the court’s temporary injunction. According to the defendant, the animals at the farm serve as “pet therapy” for children with special needs. She stated that she had some chickens, a few ducks, rabbits and a mini Sicilian donkey, which served as a “seeing eye donkey” for some of the children. The parties dispute whether the defendant moved the animals and construction materials a sufficient distance from the plaintiffs property.

On March 11, 2010, in its memorandum of decision, the court found that, considering the testimony and evidence before it, the defendant had violated the court’s temporary injunction order “by continuing to allow farm animals and other material to trespass upon the plaintiffs property.” The court ordered the defendant to “immediately remove any and all debris, animals, equipment, machinery, structures, trailers, animal waste or by-products (including feces) from the plaintiffs property lines and place [them] a sufficient distance from the plaintiffs property lines to prevent further trespasses . . . .” The court also ordered the defendant to pay to the plaintiff “a fine in the amount of $5000 to compensate for the damage to the property resulting from the trespasses, together with attorney’s fees of $1200 and the costs associated with having to present this matter to the court.” This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant first claims that the court abused its discretion by ordering her to pay a $5000 compensatory fine pursuant to the court’s finding of contempt. We agree that the court lacked a proper factual foundation to support the damages award.

We first set forth the applicable standard of review. A finding of contempt is a question of fact, and our standard of review is to determine whether the court abused its discretion in finding that the actions or inactions of the defendant were in contempt of its order. See Gina M. G. v. William C., 77 Conn. App. 582, 590, 823 A.2d 1274 (2003).

“Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense. . . . Contempts of court may also be classified as either direct or indirect, the test being whether the contempt is offered within or outside the presence of the court.” (Citation omitted; internal quotation marks omitted.) Edmond v. Foisey, 111 Conn. App. 760, 769, 961 A.2d 441 (2008). The plaintiff in this case alleged in its motion for contempt that the defendant failed to comply with the court’s order and, thus, because it occurred outside of the court’s presence, the contempt is properly classified as indirect contempt. See id.

In determining whether the contempt was criminal or civil, we note that “[c]riminal contempt is conduct directed against the authority and dignity of the court, while civil contempt is conduct directed against the rights of the opposing party. ... A contempt is considered civil when the punishment is wholly remedial, serves only the purposes of the complainant, and is not intended as a deterrent to offenses against the public. . . . Sanctions for civil contempt may be either a fine or imprisonment; the fine may be remedial or it may be the means of coercing compliance with the court’s order and compensating the complainant for losses sustained.” (Citation omitted; internal quotation marks omitted.) Id. Because the purpose of the sanctions in the present case was to compensate the plaintiff, we conclude that the contempt in the present case is properly classified as civil, rather than criminal. Id., 769-70.

The defendant specifically argues that the court exceeded its discretion in ordering, pursuant to its finding of contempt, a compensatory damages award to the plaintiff because the court failed to determine whether (1) the defendant could purge herself of the contempt and (2) the plaintiff suffered an actual loss. As to the defendant’s first claim, we conclude that the court was not required to provide the defendant with an opportunity to purge herself of her contemptuous behavior. “When a fíne is compensatory, the contemnor need not be offered the opportunity to purge herself of the contemptuous behavior.” Id., 773. The opportunity for a contemnor to purge herself “is only a consideration when punishment, such as imprisonment or a noncompensatory fine, has been imposed in accordance with the finding of contempt.” In re Jeffrey C., 261 Conn. 189, 198, 802 A.2d 772 (2002). The court’s order specifically stated that “[t]he defendant shall pay the plaintiff a fine in the amount of $5000 to compensate for the damage to the property . . . .” (Emphasis added.) In its memorandum of decision, the court credited Fleming’s testimony that, after the court issued its temporary injunction order, the defendant continued to allow farm animals and other materials to trespass on the plaintiffs property. Thus, the court did not abuse its discretion by awarding a compensatory fine against the defendant without providing her the opportunity to purge.

As to the defendant’s claim regarding the amount of the court’s award of compensatory damages, we note that our Supreme Court has concluded that civil contempt proceedings may be used to compensate a complainant based on his or her actual loss. “Judicial sanctions in civil contempt proceedings may, in a proper case, be employed for either or both of two purposes: to coerce the defendant into compliance with the court’s order, and to compensate the complainant for losses sustained. . . . Where compensation is intended, a fine is imposed, payable to the complainant. Such fine must of course be based upon evidence of [the] complainant’s actual loss, and his right, as a civil litigant, to the compensatory fine is dependent upon the outcome of the basic controversy. Civil contempt proceedings are not punitive—i.e., they are not imposed for the purpose of vindicating the court’s authority— but are purely remedial. . . . The United States Court of Appeals for the First Circuit [has] noted that it is well settled . . . that the court may, in a proceeding for civil contempt, impose the remedial punishment of a fine payable to an aggrieved litigant as compensation for the special damages he may have sustained by reason of the contumacious conduct of the offender. . . . [S]uch a compensatory fine must necessarily be limited to the actual damages suffered by the injured party as a result of the violation of the injunction. . . . The United States Supreme Court aptly has observed that [t]he absence of wilfulness does not reheve from civil contempt .... Since the propose is remedial, it matters not with what intent the defendant did the prohibited act.” (Citations omitted; emphasis added; internal quotation marks omitted.) DeMartino v. Monroe Little League, Inc., 192 Conn. 271, 278-79, 471 A.2d 638 (1984). In DeMartino, the court specifically stated that the trial court properly “confined its compensation ... to [the plaintiffs] actual losses.” Id., 280.

In the present case, the court failed to provide a factual basis for the amount of its award of compensatory damages. Although the court, in its memorandum of decision, acknowledged that the defendant’s trespasses caused damage to the plaintiffs land, the plaintiff did not present any evidence as to the loss that it claimed to have sustained. We note, however, that during the November 4, 2009 contempt hearing, the court stated on the record: “I’m going to disallow anything that has to do with value that could be eventually damages at the end. It’s not for today’s limited issue as to whether or not the defendant has intentionally trespassed on the property of the plaintiff.” The record does not reveal that the court’s remark precluding evidence of value or loss was made with reference to any offer of proof, nor did objections or argument by either party ensue. In the absence of any evidence of actual loss, however, we must conclude that the court’s $5000 award had no factual support in the record. We conclude, therefore, that the court abused its discretion by imposing a compensatory fine without any showing of actual loss by the plaintiff. Because the court may effectively have precluded evidence as to loss by its remark to that effect, the parties are entitled to a hearing on damages to determine any loss that may have occurred as a result of the defendant’s contemptuous conduct in violation of the court’s order.

II

The defendant also claims that the court abused its discretion by awarding attorney’s fees in the amount of $1200. According to the defendant, the court received no evidence to provide a factual basis for the court’s award. We agree.

“[0]rdinarily, courts in this country do not award attorney’s fees to the prevailing party unless . . . the payment of such fees is provided for by statute. . . . The authority of the trial court to award attorney’s fees following a contempt proceeding is well settled. Once a contempt has been found, [General Statutes § 52-256b (a)] establishes a trial court’s power to sanction a noncomplying party through the award of attorney’s fees. . . . The award of attorney’s fees in contempt proceedings is within the discretion of the trial court. . . . Whether to allow counsel fees and in what amount calls for the exercise of judicial discretion.” (Citation omitted; internal quotation marks omitted.) Gina M. G. v. William C., supra, 77 Conn. App. 594-95. In this case, the court ordered the defendant to pay attorney’s fees to compensate the plaintiff for expenses incurred in having to bring this action.

The defendant contends that the court’s award of attorney’s fees and associated costs was arbitrary because the court failed to provide a basis for the award. The defendant argues that, because the court received no evidence supporting an award of attorney’s fees, it abused its discretion by awarding $1200 to the plaintiff. In response, the plaintiff argues that, pursuant to Gina M. G., “courts may rely on their general knowledge of what has occurred at the proceedings before them to supply evidence in support of an award of attorney’s fees.” (Internal quotation marks omitted.) Id., 595.

Although we acknowledged in GinaM. G. that courts may rely on their general knowledge as to attorney’s fees, in that case we noted that “the court had been familiar with counsel’s preparation and presentation of the case,” and the defendant had presented evidence regarding attorney’s fees. Id. Under those circumstances, we determined in that case that the trial court did not abuse its discretion by awarding attorney’s fees in the absence of an evidentiary hearing. Id. In the present case, the record contains nothing to indicate that the court had before it any evidence of the preparation or presentation of the case by the plaintiffs counsel. The court did not hold a hearing on attorney’s fees, nor did the plaintiff present evidence regarding attorney’s fees. Although the plaintiff has appended to its appellate brief documentation of the attorney’s fees in relation to the contempt hearing, that evidence is outside the record and not properly before this court. See State v. Ovechka, 292 Conn. 533, 547 n.19, 975 A.2d 1 (2009) (“well established principles governing appellate review of factual decisions preclude us from utilizing this material to find facts on appeal”).

After, a careful review of the record, we conclude that the court’s award of attorney’s fees had no factual basis. The court did not indicate nor did the record support the court’s decision that “having to present this matter to the court” warranted attorney’s fees of $1200. “Our Supreme Court has long held that there is an undisputed requirement that the reasonableness of attorney’s fees and costs must be proven by an appropriate evidentiary showing. . . . We also have noted that courts have a general knowledge of what would be reasonable compensation for services which are fairly stated and described . . . .” (Internal quotation marks omitted.) Bobinski v. Kalinowski, 107 Conn. App. 622, 629, 946 A.2d 283, cert. denied, 289 Conn. 919, 958 A.2d 150 (2008). In Bobinski, although this court inferred the trial court’s unstated reasoning for not awarding additional attorney’s fees, we specifically noted that the trial court in that case had before it information with which to make that decision, including an affidavit and time sheets. Id., 629-30. In the present case, in which the record contains no evidence to support the award, the court may have considered its general knowledge regarding attorney’s fees. Gina M. G. v. William C., supra, 77 Conn. App. 595. The record is silent, however, as to that factor as well. We, therefore, conclude that the court abused its discretion by awarding $1200 in attorney’s fees without a factual basis for the award.

The judgment is reversed only as to the order of damages and attorney’s fees and the case is remanded for a hearing on damages and attorney’s fees with respect to the court’s judgment of contempt.

In this opinion the other judges concurred.

       Valley View Riding Stables, Mae Lyons, the planning and zoning department of the town of Killingly and Michael Sobieniak were also named as defendants in this action. Because none of these defendants is a party to this appeal, we refer in this opinion to Amy Lyons as the defendant.

       Douglas Fleming, the president of DPF Financial Holdings, LLC, filed the original complaint, appearing “pro se” on behalf of DPF Financial Holdings, LLC. The court ruled that Fleming’s representation of DPF Financial Holdings, LLC, was “legally improper.” Thereafter, Fleming obtained counsel to enter an appearance in lieu of his appearance. Subsequently, Fleming was added as a party plaintiff. In this opinion, we refer to DPF Financial Holdings, LLC, as the plaintiff and to Fleming by name.

       General Statutes § 52-256b (a) provides: “When any person is found in contempt of any order or judgment of the Superior Court, the court may award to the petitioner a reasonable attorney’s fee and the fees of the officer serving the contempt citation, such sums to be paid by the person found in contempt.”

       We also note that there is nothing in the record or transcript from the November 4, 2009 hearing from which we can determine the length of the contempt hearing.


source: Caselaw Access Project

author: BORDEN, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. TYQUAN AVANT BRODIA
    (AC 31162)
    Bishop, Robinson and Borden, Js.

      Argued January 31
    officially released June 14, 2011

      Annacarina Jacob, senior assistant public defender, with whom, on the brief, was James B. Streeto, assistant public defender, for the appellant (defendant).

      Rita M. Shair, senior assistant state’s attorney, with whom were Michael Dearington, state’s attorney, and, on the brief, Brian Leslie, assistant state’s attorney, for the appellee (state).
   Opinion

BORDEN, J.

The defendant, Tyquan Avant Brodia, appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), possession of narcotics with intent to sell within 1500 feet of a public housing project in violation of General Statutes § 21a-278a (b), possession of a controlled substance with intent to sell in violation of General Statutes § 2 la-277 (b), and possession of a controlled substance with intent to sell within 1500 feet of a public housing project in violation of § 21a-278a (b). On appeal, the defendant claims that: (1) the trial court improperly denied his motion to suppress evidence seized as the result of a warrantless vehicle search; (2) the court failed to give a requested instruction regarding nonexclusive possession; (3) the court improperly failed to require the jury to reach a unanimous verdict; and (4) the evidence adduced at trial was insufficient to support his conviction. We disagree and, accordingly, affirm the judgment of the trial court.

The defendant was charged by way of a substitute information with the crimes previously set forth. The jury found him guilty of all of the charges, and the court rendered judgment accordingly and sentenced the defendant to a total effective term of seventeen years incarceration. This appeal followed.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. On the afternoon of July 29, 2007, Luiz Casanova, a thirteen year veteran of the New Haven police department, was traveling to a community meeting at Famam Court, a public housing project, in New Haven. Casanova had switched from driving a police vehicle to driving his own personal vehicle so that he could go directly home after the meeting, but was still dressed in full police uniform. As he approached Famam Court, Casanova noticed a Ford Taurus obstructing the driveway entrance and a Dodge Intrepid parked alongside facing his direction. Casanova stopped behind the Taurus and, as he waited for it to move, watched as the defendant exited the Intrepid and walked over toward the Taurus. The defendant and the driver of the Taurus, Louis Perry, then engaged in what Casanova believed to be a hand-to-hand drug transaction, as he witnessed the two individuals exchange an item for money.

The defendant then turned in the direction of Casanova, pointed to his hand and asked if he was “all set or did [he] want one.” Casanova suspected the items in the defendant’s hand were drugs and he nodded his head as if to indicate that he too wanted to make a purchase. The defendant began walking toward Casanova, who then exited his vehicle. When the defendant realized that Casanova was dressed in a police uniform, he immediately ran back toward the Taurus and tried to climb into the driver’s side window. Casanova ran after him and, seeing that the defendant was trying to swallow the items he had in his hand, Casanova grabbed the defendant’s right arm and the items fell to the ground. Casanova described the items on the ground as “small, glassine ziplock baggies, brown tinted . . . [with] a white rocky substance inside.” From his training and experience, Casanova believed that the substance was crack cocaine.

At that point, Casanova put the defendant in handcuffs and, when additional officers arrived, secured him in a police vehicle. Casanova then walked over to the Intrepid, looked inside and saw a plastic bag between the console and the driver’s seat, which contained many other smaller bags. Casanova opened the door to the vehicle and pulled out the bag, which contained many smaller bags that contained what was later determined to be marijuana and crack cocaine.

Two additional police officers, namely, Officer Richard Cotto and Officer Diego Quintero, subsequently arrived at the scene. Cotto removed Perry from the Taurus and, in the process, saw small tinted baggies containing a white rocky substance on the driver’s seat. The baggies matched those that had fallen to the ground when Casanova restrained the defendant.

Following his arrest, the defendant filed a motion to suppress the contraband recovered from the Intrepid, contending that the search and seizure were conducted without a warrant and absent other legal justification. The court thereafter issued an oral memorandum of decision denying the defendant’s motion. Additional facts will be set forth as necessary.

I

The defendant first claims that the state conducted an illegal warrantless vehicle search and, therefore, the seizure of the contraband in the rented Intrepid violated his federal and state constitutional rights. The following additional facts are relevant to his claim.

In his motion to suppress, the defendant claimed that the search of the Intrepid and the subsequent seizure of the contraband were illegal in that the search was conducted without a warrant and the police did not have probable cause to justify a warrantless search of the vehicle. The court held an evidentiary hearing on the defendant’s motion, during which Casanova testified that, on the basis of his extensive experience and training regarding illicit narcotics sales, he witnessed what he suspected to be a hand-to-hand drug transaction between the defendant and Perry. Casanova also testified that, after he exited his vehicle, the defendant ran toward the Taurus and tried to swallow the items that were in his hand. Casanova then explained that he restrained the defendant and the items, which he described as individually wrapped packets of crack cocaine, fell to the ground. In addition, Casanova testified that, after the defendant had been secured, he went to the Intrepid and observed a large bag with a variety of narcotics in it. Casanova stated that the bag was found between the driver’s seat and the console, and that he clearly could see the bag without any manipulation of the seat.

In its oral memorandum of decision, the court first noted that the defendant had a reasonable expectation of privacy in the rented vehicle and that the warrantless search of the vehicle was per se unreasonable. The court concluded, however, that several exceptions to the warrant requirement applied in this case, namely, the plain view doctrine, probable cause to believe the automobile contained evidence pertaining to the crime, and a search incident to a lawful arrest. In support of this determination, the court found credible Casanova’s testimony that he witnessed the defendant exit the Intrepid and engage in what he believed to be a drug transaction, that he found drugs on the ground near where the defendant was apprehended and that the plastic bag found in the Intrepid containing marijuana and crack cocaine was in plain view.

On appeal, the defendant claims that the court improperly denied his motion to suppress. “Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision .... We undertake a more probing factual review when a constitutional question hangs in the balance.” (Citation omitted; internal quotation marks omitted.) State v. Clark, 297 Conn. 1, 7, 997 A.2d 461 (2010).

The defendant first contends that the court’s findings were clearly erroneous and unsupported by the record with regard to its determination that the plastic bag containing the contraband was in plain view. Specifically, he claims that the court erroneously found that the seizure of the contraband was reasonable under the plain view doctrine because Casanova did not testify that the actual contents of the bag were visible in plain view. We are not persuaded.

“In Coolidge v. New Hampshire, 403 U.S. 443, 464-73, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), the United States Supreme Court articulated what has become known as the plain view exception to the warrant requirement. The warrantless seizure of contraband that is in plain view is reasonable under the fourth amendment if two requirements are met: (1) the initial intrusion that enabled the police to view the items seized must have been lawful; and (2) the police must have had probable cause to believe that these items were contraband or stolen goods.” (Internal quotation marks omitted.) State v. Brown, 279 Conn. 493, 520, 903 A.2d 169 (2006).

“The plain view doctrine is based upon the premise that the police need not ignore incriminating evidence in plain view while they are operating within the parameters of a valid search warrant or are otherwise entitled to be in a position to view the items seized.” (Internal quotation marks omitted.) State v. Thomas, 98 Conn. App. 542, 552, 909 A.2d 969 (2006), cert. denied, 281 Conn. 910, 916 A.2d 53 (2007). “[I]f contraband is left in open view and is observed by a police officer from a lawful vantage point, there has been no invasion of a legitimate expectation of privacy and thus no search within the meaning of the [f]ourth [a]mendment—or at least no search independent of the initial intrusion that gave the officers their vantage point.” (Internal quotation marks omitted.) State v. Brown, supra, 279 Conn. 520-21.

The defendant does not challenge the fact that Casanova lawfully was entitled to his vantage point at the moment he first observed the plastic bag in the Intrepid; the thrust of his claim is that Casanova failed to testify specifically that the contents of the bag were visible from the outside of the Intrepid and, consequently, there was no testimony to support the court’s finding that it was apparent to Casanova that the plastic bag actually contained contraband. “Under the plain view doctrine, if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant. . . . The police meet the immediately apparent requirement if, [up] on discovery, they have probable cause to associate the property in plain view with criminal activity without further investigation.” (Citation omitted; internal quotation marks omitted.) Id., 521.

As set forth previously, Casanova specifically testified at the evidentiary hearing on the motion to suppress that he walked over to the Intrepid and “observed a large bag with a variety of narcotics in it.” When asked whether he clearly could see the bag without any manipulation of the seat, he answered in the affirmative. Moreover, even if Casanova could not determine with absolute certainty that the bag contained contraband, the underlying facts “were sufficient to establish probable cause to associate the property in plain view with criminal activity without further investigation.” (Internal quotation marks omitted.) Id., 522. Accordingly, we conclude that Casanova lawfully seized the contraband under the plain view doctrine and that the trial court properly denied the defendant’s motion to suppress.

II

We turn next to the defendant’s claim that the court failed to give a requested instruction regarding the doctrine of nonexclusive possession. The following additional facts are relevant to this claim.

At trial, the defendant presented evidence that the Intrepid had not been rented by him, and instead had been rented by his friend, Laquita Lennon. Lennon testified that she had rented the vehicle, but had let the defendant use it because something was wrong with his own vehicle. She also stated that when she gave the defendant the vehicle there were no plastic bags located between the console and the driver’s seat.

In his written request to charge, the defendant requested an instruction on the doctrine of nonexclusive possession. Specifically, the defendant requested the court to instruct the jury that if it had reasonable doubt as to whether he alone had possession of the Intrepid, it was “precluded from inferring the element of possession (to the defendant) from the mere fact that the defendant, along with others, occupied or had access to the premises wherein the contraband was found.” Thereafter, the court heard argument on the defendant’s request to charge. Following the defendant’s concession that he was the only person seen in the vehicle at or around the time of his arrest and the seizure of the contraband, the court denied the request.

The defendant contends that the court improperly refused to instruct the jury on the doctrine of nonexclusive possession. The state counters that the court properly refused to instruct on nonexclusive possession because the defendant failed to adduce a sufficient evidentiary foundation to warrant such an instruction. We agree with the state and conclude that the court properly denied the defendant’s request to charge the jury on this issue.

“Our Supreme Court has defined the doctrine of nonexclusive possession as follows: ‘Where the defendant is not in exclusive possession of the premises where the [illegal item is] found, it may not be inferred that [the defendant] knew of the presence of the [illegal item] and had control of [it], unless there are other incriminating statements or circumstances tending to buttress such an inference. . . . The doctrine of nonexclusive possession was designed to prevent a jury from inferring a defendant’s possession of [an illegal item] solely from the defendant’s nonexclusive possession of the premises where the [illegal item was] found. . . . When the doctrine applies, an instruction focuses the jury’s attention on the defendant’s knowledge and intent to possess, precluding it from inferring possession from the mere fact that the defendant, along with others, occupied or had access to the premises wherein the contraband was found.’ . . . State v. Williams, 258 Conn. 1, 7-8, 778 A.2d 186 (2001).” State v. Boyd, 115 Conn. App. 556, 563-64, 973 A.2d 138, cert. denied, 293 Conn. 912, 978 A.2d 1110 (2009).

“As a general rule, a defendant is entitled to have instructions on a defense for which there is evidence produced at trial to justify the instruction, no matter how weak or incredible the claim.” (Internal quotation marks omitted.) State v. Williams, supra, 258 Conn. 8. “Although a requested jury instruction may be accurate as an abstract principle of law, it must be applicable to the facts of the case at hand.” State v. Collazo, 113 Conn. App. 651, 668, 967 A.2d 597, cert. denied, 293 Conn. 904, 976 A.2d 705 (2009). Furthermore, “[t]he court . . . has a duty not to submit to the jury, in its charge, any issue upon which the evidence would not reasonably support a finding.” (Internal quotation marks omitted.) State v. Heinemann, 282 Conn. 281, 299, 920 A.2d 278 (2007).

In the present case, the defendant failed to proffer any evidence that reasonably would suggest that there was simultaneous access by others to the Intrepid while the contraband was in the vehicle. Moreover, Lennon testified that, at the time she gave the defendant the keys to the vehicle, there were no objects or plastic bags between the console and the driver’s seat. In addition, Casanova testified that there was no one in the Intrepid when the defendant exited the vehicle and walked over to engage in the drug transaction with Perry. Under these circumstances, it would have been improper for the court to have instructed the jury on nonexclusive possession because the evidence reasonably would not have supported a finding that there was joint or simultaneous access to the contraband in the vehicle. See State v. Williams, supra, 258 Conn. 15; see also State v. Collazo, supra, 113 Conn. App. 669 (defendant not entitled to nonexclusive possession instruction where evidence demonstrated he was only person in vehicle at time of arrest).

Ill

The defendant also claims that the court improperly failed to require the jury to agree unanimously on the factual basis for a guilty verdict on the possession with intent to sell charges. The defendant concedes on appeal that this claim was not preserved at trial but nevertheless seeks to prevail under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Although we conclude that the record is adequate for review and the claim is of constitutional magnitude; see State v. Griffin, 97 Conn. App. 169, 182, 903 A.2d 253 (“[a] claim bearing on the defendant’s right to a unanimous verdict implicates a fundamental constitutional right to a fair trial” [internal quotation marks omitted]), cert. denied, 280 Conn. 925, 908 A.2d 1088 (2006); the defendant has failed to demonstrate that a constitutional violation exists.

In State v. Famiglietti, 219 Conn. 605, 619-20, 595 A.2d 306 (1991), our Supreme Court set forth the applicable principles governing specific unanimity charges: “[W]e have not required a specific unanimity charge to be given in every case in which criminal liability may be premised on the violation of one of several alternative subsections of a statute. We have instead invoked a multipartite test to review a trial court’s omission of such an instruction. We first review the instruction that was given to determine whether the trial court has sanctioned a nonunanimous verdict. If such an instruction has not been given, that ends the matter. Even if the instructions at trial can be read to have sanctioned such a nonunanimous verdict, however, we will remand for a new trial only if (1) there is a conceptual distinction between the alternative acts with which the defendant has been charged, and (2) the state has presented evidence to support each alternative act with which the defendant has been charged.” (Emphasis added.)

The defendant contends that the court’s instructions were inadequate because they did not instruct the jury that it had to agree unanimously on the factual basis for finding the defendant guilty of possession with intent to sell. Specifically, he claims that, because the state offered two different theories upon which the defendant could have been found to have been in possession of controlled substances, namely, actual possession of the crack cocaine found on the ground near the Taurus and constructive possession of the large bag containing crack cocaine and marijuana found in the Intrepid, without an appropriate unanimity instruction, “[s]ome jurors could have concluded the evidence failed to support a finding of constructive possession of the narcotics found in the Intrepid, while other jurors could have concluded the evidence failed to support a finding that the defendant possessed with intent to sell the four bags found on the ground . . . .” We are not persuaded.

Our careful review of the court’s entire charge reveals a complete absence of any language expressly sanctioning a nonunanimous verdict. “With respect to the first prong of Famiglietti, namely, whether the trial court’s jury instructions have sanctioned a nonunanimous verdict, it is well established that the absence of language expressly sanctioning a nonunanimous verdict means that the defendant has not met the first part of the Famiglietti test. . . . Indeed, if the trial court did not sanction a nonunanimous verdict we need not address the other parts of the Famiglietti test.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Ceballos, 266 Conn. 364, 419-20, 832 A.2d 14 (2003). Furthermore, the court instructed the jury as follows on the need for a unanimous verdict with respect to the possession with intent to sell narcotics counts: “If you find the state has proven beyond a reasonable doubt the defendant possessed with intent to sell a narcotic substance, cocaine freebase, and that it occurred in or on or within 1500 feet of the real housing project, you say so by your verdict. On the other hand, if you find that the state has not proven unanimously beyond a reasonable doubt any of the elements you shall find the defendant not guilty.”

IV

Finally, the defendant raises a claim of evidential insufficiency. Specifically, he maintains that the evidence adduced by the state was insufficient to sustain his conviction for possession of marijuana and crack cocaine. We do not agree.

“The standard of review we apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . .

“Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [finder of fact], would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s] verdict of guilty. ” (Internal quotation marks omitted.) State v. Ledbetter, 275 Conn. 534, 542-43, 881 A.2d 290 (2005), cert. denied, 547 U.S. 1082, 126 S. Ct 1798, 164 L. Ed. 2d 537 (2006).

In the present case, there is a reasonable view of the evidence that supports the jury’s finding that the defendant was in possession of the crack cocaine and the marijuana. As set forth previously, the state presented evidence in the form of Casanova’s testimony that the defendant engaged in what he believed to be a hand-to-hand drug transaction, where the defendant passed an item to Perry in exchange for money. The defendant inquired of Casanova whether he was “all set,” then approached Casanova’s vehicle and subsequently fled when he realized Casanova was dressed in a police uniform. Casanova then apprehended the defendant and grabbed his arm, forcing him to drop the items in his hand. The items fell to the ground and subsequent field tests indicated that the items the defendant had been carrying tested positive for cocaine in a free-base form. Accordingly, we conclude that there was sufficient evidence to support the finding that the defendant was in actual possession of crack cocaine.

The record also demonstrates that there was sufficient evidence from which the jury reasonably could find that the defendant was in constructive possession of the crack cocaine and marijuana found in the Intrepid. The jury heard the testimony of Lennon that, although she had rented the Intrepid, she let the defendant use it on the day he was arrested and the controlled substances were found in the vehicle. Lennon also testified that there was no plastic bag between the center console and the driver’s seat when she lent it to the defendant. Furthermore, Casanova testified that the defendant was alone in the vehicle and, after the defendant was apprehended, he saw the large plastic bag containing crack cocaine and marijuana between the front seat and the console of the Intrepid. Finally, there was no testimony presented to the jury that anyone other than the defendant had been seen in the vehicle or had approached the vehicle during the events that led up to Casanova’s noticing the controlled substances in plain view.

The judgment is affirmed.

In this opinion the other judges concurred.

       This conclusion renders it unnecessary to consider the defendant’s challenges to the court’s conclusions that the search and seizure also was valid under the automobile and the search incident to arrest exceptions to the warrant requirement.

       Although a copy of the request to charge is not part of the trial court file, the record reflects indisputably that the court was aware of the request, heard argument on the proposed charge and rejected it. Moreover, the state does not contend, nor does the record reflect, that the request to charge was not filed in accordance with our rules of practice. Compare State v. Jefferson, 114 Conn App. 566, 574-75, 970 A.2d 797 (document not filed in compliance with Practice Book § 42-17 cannot be considered written request to charge and does not properly preserve instructional error claim), cert. denied, 292 Conn. 921, 974 A.2d 722 (2009). Accordingly, we conclude that the issue is preserved for appellate review. See Practice Book § 16-20.

       Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.


author: BISHOP, J.

text:
    ANDREAS SAVVIDIS v. CITY OF NORWALK
    (AC 31586)
    Bishop, Beach and Bear, Js.

      Argued March 23
    officially released June 14, 2011

      Linda M. Guliuzza, assistant corporation counsel, with whom, on the brief, was Robert F. Maslan, Jr., corporation counsel, for the appellant (defendant).

      Allan M. Cane, for the appellee (plaintiff).
   Opinion

BISHOP, J.

This appeal by the defendant, the city of Norwalk, stems from the trial court’s denial of cross motions for summary judgment filed by the parties in an action for money damages brought by the plaintiff, Andreas Sawidis. The case follows an earlier action between the parties in which the plaintiff sought and obtained an order of mandamus requiring the defendant to issue a certificate of occupancy regarding certain real property. Because we agree with the defendant that the plaintiffs claims in this action are barred by the doctrine of res judicata, we reverse the judgment of the trial court.

The following procedural and factual history, which is undisputed, is relevant to the resolution of the defendant’s appeal. In March, 2005, the plaintiff and the then co-owners of the property commenced an action seeking a writ of mandamus for a certificate of occupancy and damages for financial losses incurred in upgrading an apartment building on the property in Norwalk. On August 8, 2007, following a trial, the court rendered a decision in favor of the plaintiff and the co-owners, granting a writ of mandamus directing the defendant to issue a certificate of occupancy for the subject property. With respect to the plaintiffs claim for money damages, the court stated: “The court finds for the defendant based on the order in the [mandamus claim].” Thus, the court did not award any money damages to the plaintiffs. Although the defendant filed an appeal, the defendant, at a later date, issued a certificate of zoning compliance, a certificate of occupancy, and withdrew its appeal.

In August, 2008, the plaintiff commenced this action seeking monetary damages on the ground that he was unable to rent the subject property from April 27, 2004, until May 30, 2008, and that he incurred attorney’s fees and other costs as a result of the defendant’s failure to timely issue a certificate of occupancy. The parties subsequently filed cross motions for summary judgment. In his motion, the plaintiff argued that the defendant’s liability had been determined in the first action and, therefore, could not be relitigated. In its motion, the defendant claimed that the plaintiffs claims were barred by the doctrine of res judicata on the ground that the plaintiff sought and was denied monetary damages in the first action, and, although he may not have raised these specific claims for compensation, he had the opportunity to seek them in the first action but failed to do so. In response, the plaintiff alleged that res judicata should not apply because it would have been premature for him to seek compensation for lost business opportunity at that juncture. The court denied both motions for summary judgment on the ground that it was unable to determine whether the claims in the present action had been litigated in the first action. This appeal followed.

On appeal, the defendant claims that the court improperly determined that there was an issue of material fact as to whether the plaintiffs claims were barred by the doctrine of res judicata. We agree.

The standard of review of motions for summary judgment is well settled. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. ... On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court.” (Internal quotation marks omitted.) Weiss v. Weiss, 297 Conn. 446, 458, 998 A.2d 766 (2010). Our review of the trial court’s decision to deny the defendant’s motion for summary judgment is plenary. See id.

“[T]he applicability of res judicata . . . presents a question of law over which we employ plenary review. . . . The principles that govern res judicata are described in Restatement (Second) of Judgments .... The basic rule is that of § 18, which [provides] in relevant part: When a valid and final personal judgment is rendered in favor of the plaintiff: (1) [t]he plaintiff cannot thereafter maintain an action on the original claim or any part thereof, although he may be able to maintain an action upon the judgment .... As comment (a) to § 18 explains, [w]hen the plaintiff recovers a valid and final personal judgment, his original claim is extinguished and rights upon the judgment are substituted for it. The plaintiffs original claim is said to be merged in the judgment. Our . . . case law has uniformly approved and applied the principle of claim preclusion or merger. . . .

“Because the operative effect of the principle of claim preclusion or merger is to preclude relitigation of the original claim, it is crucial to define the dimensions of that original claim. The Restatement (Second), Judgments provides, in § 24, that the claim [that is] extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. What factual grouping constitutes a transaction, and what groupings constitute a series, are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage. In amplification of this definition of original claim, § 25 of the Restatement (Second) [of Judgments provides] that [t]he rule of § 24 applies to extinguish a claim by the plaintiff against the defendant even though the plaintiff is prepared in the second action (1) [t]o present evidence or grounds or theories of the case not presented in the first action, or (2) [t]o seek remedies or forms of relief not demanded in the first action.

“The transactional test of the Restatement [(Second) of Judgments] provides a standard by which to measure the preclusive effect of a prior judgment, which we have held to include any claims relating to the cause of action which were actually made or might have been made. ... In determining the nature of a cause of action for these purposes, we have long looked to the group of facts which is claimed to have brought about an unlawful injury to the plaintiff . . . and have noted that [e]ven though a single group of facts may give rise to rights for several different kinds of relief, it is still a single cause of action. . . .

“The Restatement (Second) of Judgments further explains, with respect to how far the witnesses or proof in the second action would tend to overlap the witnesses or proof relevant to the first, [i]f there is a substantial overlap, the second action should ordinarily be held precluded. But the opposite does not hold true; even when there is not a substantial overlap, the second action may be precluded if it stems from the same transaction or series. 1 Restatement (Second), Judgments § 24, comment (b) (1982). Similarly, [w]hen a defendant is accused of successive but nearly simultaneous acts, or acts which though occurring over a period of time were substantially of the same sort and similarly motivated, fairness to the defendant as well as the public convenience may require that they be dealt with in the same action. Id., comment (d).

“Our rules of res judicata are based on the public policy that a party should not be allowed to relitigate a matter which it already has had an opportunity to litigate. . . . [T]he purpose of a law suit is not only to do substantial justice but to bring an end to controversy. . . . [T]he purposes of res judicata [of] promoting judicial economy, minimizing repetitive litigation, preventing inconsistent judgments and providing repose to parties . . . [however, must be] balanced against the competing interest of the plaintiff in the vindication of a just claim. . . . Indeed, we have recognized that the application of res judicata can yield harsh results . . . and, as a result, have stated that the doctrine should be flexible and must give way when [its] mechanical application would frustrate other social policies based on values equally or more important than the convenience afforded by finality in legal controversies.” (Citations omitted; internal quotation marks omitted.) Lighthouse Landings, Inc. v. Connecticut Light & Power Co., 300 Conn. 325, 347-50, 15 A.3d 601 (2011).

Here, it is undisputed that the plaintiffs claim for lost rental income was not litigated in the first action. The plaintiff claims, and we agree, that a fair reading of the complaint in the first action reveals that his claim for monetary damages in that action was presented as an alternative to the granting of a writ of mandamus. In short, the plaintiff, in the first action, sought either a writ of mandamus or compensation for the funds he claimed to have expended in reliance on the defendant’s obligation to issue a certificate of occupancy for the subject premises. Even though the plaintiff did not seek compensation for lost business opportunities in that action, the defendant contends that the plaintiffs claim is barred by res judicata because the plaintiff had the opportunity to litigate that claim in the first action but failed to do so. Based on our review of the complaints in the two actions, it is clear that the plaintiffs claims in both arise from the same underlying facts, namely, the defendant’s failure to timely issue a certificate of occupancy. Indeed, the plaintiff does not claim otherwise.

The plaintiff claims, nevertheless, that although he sought money damages incurred in upgrading the subject property in the first action in reliance on obtaining a certificate of occupancy, he could not have then sought damages for lost rental income because such a claim did not exist until the mandamus had been granted, and the financial losses could not have been fully ascertained until the certificate of occupancy had issued. We are not persuaded. Indeed, the plaintiffs argument that it would have been premature for him to seek compensation for lost business opportunities before obtaining the equitable relief of mandamus is unsupported by our decisional law which states that damages for future anticipated business profits, if buttressed by reasonable evidence, are a proper subject of a compensatory award. See Cheryl Terry Enterprises v. Hartford, 270 Conn. 619, 639, 854 A.2d 1066 (2004) (damages for future lost profits recoverable to the extent evidence affords sufficient basis for estimating amount with reasonable certainty). Indeed, it is axiomatic that damages may not be awarded absent a finding of liability and that resulting damages, including future damages, are routinely sought in the same action and not through piecemeal or repetitive litigation. Accordingly, we see no reason why the plaintiff could not have sought damages for anticipated lost business income in the first action. Thus, because the plaintiffs claim for lost rental income arose from the same set of causal circumstances as his claims in the first action and he could have sought damages for such projected losses in that action, he is now precluded by the doctrine of res judicata from asserting such a claim in the present action.

The judgment is reversed and the case is remanded with direction to render judgment in favor of the defendant.

In this opinion the other judges concurred.

       The defendant also claimed that it was entitled to judgment as a matter of law on the basis of municipal immunity. The court rejected that argument as well and the defendant has challenged that ruling on appeal. Because we conclude that the plaintiffs claims are barred by the doctrine of res judicata, we need not address the court’s determination of the defendant’s immunity defense.

       In denying the motion for summary judgment, the court appeared to believe that there were factual issues involved in deciding whether res judicata applied. We disagree as we believe that the issue in this case may be resolved by reference to the pleadings, the interpretation of which is always a question of law for the court. BNY Western Trust v. Roman, 295 Conn. 194, 210, 990 A.2d 853 (2010).

       Although the denial of a motion for summary judgment is ordinarily not a final judgment, the denial of a motion for summary judgment on the basis of res judicata is an appealable final judgment. See Singhaviroj v. Board of Education, 124 Conn. App. 228, 232, 4 A.3d 851 (2010).

       The plaintiff did not appeal from the court’s denial of his motion for summary judgment.


text:
    COMMISSIONER OF PUBLIC SAFETY v. BOARD OF FIREARMS PERMIT EXAMINERS ET AL.
    (AC 32595)
    DiPentima, C. J., and Bishop and Espinosa, Js.

      Submitted on briefs April 15
    officially released June 14, 2011

      George Jepsen, attorney general, Richard Blumenthal, former attorney general, and Michael K. Skold and Robert W. Clark, assistant attorneys general, filed a brief for the appellant (plaintiff).

      George Jepsen, attorney general, and DeAnn S. Varunes, assistant attorney general, filed a brief for the appellee (named defendant).
   Opinion

BISHOP, J.

The plaintiff, the commissioner of public safety (commissioner), appeals from the judgment of the trial court dismissing his administrative appeal from the decision of the defendant state board of firearms permit examiners (board), reversing the commissioner’s decision to revoke the state pistol permit of the defendant Griffess McWhorter. On appeal, the plaintiff claims that the court improperly concluded that the board did not abuse its discretion in determining that McWhorter is a suitable person to hold a firearms permit. We affirm the judgment of the trial court.

The record reveals the following undisputed facts and procedural history. McWhorter was issued a pistol permit in 2003. The commissioner revoked the permit on September 24, 2007, as a result of an incident in which McWhorter was found in possession of a weapon while operating a motor vehicle under the influence of alcohol. The relevant background facts are as follows. McWhorter was awakened by his wife in the early morning hours of August 12, 2007, when she informed him that their son was stranded in Hartford with a broken-down car. McWhorter had consumed substantial alcoholic beverages in his backyard during the prior evening. Intent on assisting his son, he quickly dressed, putting on the pants that he had been wearing the prior evening. As he got in his car and was leaving, he realized that he had a firearm in his pocket, which was later identified as a small silver and brown .32 caliber Derringer style handgun. The handgun was loaded with two bullets. At approximately 1:20 a.m., McWhorter was stopped by a Windsor police officer who had noticed that the rear registration plate light on his car was not illuminated. After observing his conduct, the officer requested that McWhorter exit the car to undergo a field sobriety test. He exited the car and informed the officer of the handgun in his pocket, which the officer confiscated. After failing the sobriety test, McWhorter was arrested and charged with possession of a weapon in a motor vehicle without a permit in violation of General Statutes § 29-38 and carrying a firearm while under the influence of intoxicating liquor or drugs in violation of General Statutes § 53-206d (a). Although he was cooperative at the scene, he was uncooperative and agitated during processing at the police station. A test of his blood alcohol content conducted at the station returned a result of 0.238. As a result of the incident, the commissioner revoked McWhorter’s pistol permit. All charges subsequently were nolled upon McWhorter’s successful completion of a pretrial alcohol education program.

Following the commissioner’s revocation of his pistol permit, McWhorter appealed to the board pursuant to General Statutes § 29-32b (b), and a hearing was held on May 7, 2009, at which McWhorter and the arresting officer testified. In its subsequent memorandum of decision, the board reversed the commissioner’s decision to revoke the permit on the basis of its findings that the arrest was a single, isolated incident in McWhorter’s otherwise law-abiding life and that he was, therefore, a suitable person to hold a firearms permit. The commissioner appealed from the board’s decision to the Superior Court pursuant to § 29-32b (f). In a memorandum of decision filed July 13, 2010, the court dismissed the commissioner’s appeal, having found that the board’s decision neither violated the statutory scheme nor was arbitrary and capricious. This appeal followed.

As a preliminary matter, we set forth the statutory scheme governing appeals from the revocation of firearms permits. Section 29-32b establishes a board of firearms permit examiners within the department of public safety whose function is to hear such appeals. Subsection (b) of § 29-32b provides in relevant part that, in hearing an appeal, “the board shall inquire into and determine the facts, de novo, and unless it finds that such a . . . revocation . . . would be for just and proper cause, it shall order such permit or certificate to be . . . restored . . . .” To supply the meaning of “just and proper cause” for revocation, our state courts have looked to the grounds for revocation set forth in General Statutes § 29-32 (b), which provides in relevant part that a firearms permit “shall be revoked by [the] commissioner upon conviction of the holder of such permit of a felony or of any misdemeanor specified in subsection (b) of section 29-28 or upon the occurrence of any event which would have disqualified the holder from being issued the state permit or temporary state permit pursuant to subsection (b) of section 29-28. . . .” See, e.g., Williams v. Board of Firearms Permit Examiners, Superior Court, judicial district of New Haven, Docket No. CV-94-0358071 (June 28, 1995). General Statutes § 29-28 (b), in turn, specifies ten grounds for mandatory disqualification. It also, more generally, provides the issuing authority with discretion to deny a firearms permit if it finds that the applicant intends to make an unlawful use of a permitted firearm or is unsuitable to hold such a permit. See General Statutes § 29-28 (b).

In the present case, because McWhorter was not subject to mandatory disqualification under § 29-28 (b), the board applied the discretionary standard and determined that he is a suitable person to hold a firearms permit. The commissioner claims on appeal that he had just cause to revoke McWhorter’s permit and, therefore, that the board abused its discretion in overruling the commissioner’s decision. Because the commissioner’s claim places at issue the statutory scope of the board’s review, which has not been subject to prior judicial scrutiny, we begin by interpreting the statutory scheme as it pertains to this issue.

Our standard of review of an agency’s construction of a statute is well settled. Where, as in the present case, the statutory language has not been subject to judicial review and the agency’s interpretation is not time-tested, our review is plenary. Vincent v. New Haven, 285 Conn. 778, 783-84, 941 A.2d 932 (2008). We turn, therefore, to our normal task of statutory interpretation uninfluenced by prior administrative gloss. “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . .” (Internal quotation marks omitted.) Dept. of Public Safety v. Board of Labor Relations, 296 Conn. 594, 599-600, 996 A.2d 729 (2010).

Section 29-32b (b) provides in relevant part that, when hearing an appeal from the denial, revocation or limitation of a firearms permit, “the board shall inquire into and determine the facts, de novo, and unless it finds that such a refusal, limitation or revocation . . . would be for just and proper cause, it shall order such permit or certificate to be issued, renewed or restored . . . .” The commissioner’s essential contention is that the placement of the words “de novo” after “facts” and before “just and proper cause” indicates that the board may find facts de novo but must limit its consideration of just cause to assessing the propriety of the commissioner’s action. The statute, however, does not direct the board to determine whether the commissioner’s action “was” for just and proper cause but, rather, to find whether the action “would be” for just and proper cause. In other words, the statute plainly provides for a present determination and not merely a historical review of the commissioner’s action.

Not only does the plain meaning of the text support this interpretation, but this outcome is in harmony with the statutory scheme governing the issuance and regulation of firearms permits. It is apparent that the commissioner has the statutory authority unilaterally to deny or revoke a permit without giving the aggrieved party the benefit of a hearing. See General Statutes §§ 29-28 (b) and 29-32 (b). The opportunity for a hearing, subject to procedural safeguards, arises only if the aggrieved party timely appeals to the board, whose sole purpose is to hear such appeals. See General Statutes § 29-32b. It is, therefore, logical that § 29-32b directs the board to find facts de novo, given that a hearing in which aggrieved parties may present evidence and argument was not available to the issuing authority when it denied or revoked a firearms permit. It also follows logically that the legislature intended for the board to be able to draw its own conclusions as to whether the denial or revocation of a permit “would be for just and proper cause” from this more developed record. We conclude, therefore, that § 29-32b (b) plainly and unambiguously does not limit the board to a deferential review of the judgment of the issuing authority.

Mindful of the board’s statutory mandate, we turn to the merits of the commissioner’s claim that the board abused its discretion in finding that McWhorter is a suitable person to hold a firearms permit and, therefore, that revocation would not be for just cause. We are not persuaded.

“According to our well established standards, [r]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact. . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . [A]n agency’s factual and discretionary determinations are to be accorded considerable weight by the courts.” (Internal quotation marks omitted.) Dept. of Public Safety v. Board of Labor Relations, supra, 296 Conn. 598-99.

To determine whether the board abused its discretion in finding that McWhorter is a suitable person to hold a firearms permit, we look to the meaning of the phrase “suitable person.” Although not statutorily defined, “[t]he words ‘suitable person’ have a definite meaning in our law, and their use in the act furnishes a standard by which the [agency] must be guided.” State v. Vachon, 140 Conn. 478, 485, 101 A.2d 509 (1953). “A person is suitable who, by reason of his character—his reputation in the community, his previous conduct as a licensee— is shown to be suited or adapted to the orderly conduct of a business which the law regards as so dangerous to public welfare that its transaction by any other than a carefully selected person duly licensed is made a criminal offense. It is patent that the adaptability of any person to such a business depends upon facts and circumstances that may be indicated but cannot be fully defined by law, whose probative force will differ in different cases, and must in each case depend largely upon the sound judgment of the selecting tribunal.” Smith’s Appeal from County Commissioners, 65 Conn. 135, 138, 31 A. 529 (1894) (affirming grant of liquor license). Specifically in the context of a firearms permit, “General Statutes §§ 29-28 through 29-38 clearly indicate a legislative intent to protect the safety of the general public from individuals whose conduct has shown them to be lacking the essential character or temperament necessary to be entrusted with a weapon.” (Internal quotation marks omitted.) Dwyer v. Farrell, 193 Conn. 7, 12, 475 A.2d 257 (1984).

The commissioner argues that McWhorter’s conduct demonstrates that he lacks the essential judgment to be entrusted with a firearm, particularly in light of the fact that he carried a loaded handgun while under the influence of alcohol. Although the charges against him were nolled, McWhorter’s conduct, as charged, has been defined as criminal under § 53-206d. Moreover, McWhorter compounded his dangerous conduct by operating a motor vehicle while armed and intoxicated and by becoming agitated and uncooperative at the police station. We do not disagree with his own characterization, at the hearing before the board, that he felt “ashamed” of his behavior during the episode in question.

Nevertheless, despite the gravity of McWhorter’s conduct and the charges that arose as a consequence, his conduct does not fall within any of the express statutory grounds for revocation or denial of a permit. There are ten grounds for mandatory disqualification in § 29-28 (b), none of which pertains here. Although it may or may not be a matter of legislative oversight, we note that even if McWhorter had been convicted of carrying a firearm while under the influence of alcohol under § 53-206d, such a conviction is not enumerated as one of those that invokes mandatory disqualification under § 29-28 (b) (2).

Additionally, we note that our decisional law posits that the determination of suitability to hold a permit depends largely on the sound judgment of the board. See Smith’s Appeal from County Commissioners, supra, 65 Conn. 138. Thus, for this court, on appeal, to conclude that McWhorter’s conduct demonstrated unsuitability per se would be to substitute our judgment for that of the board, which we may not do. See Dept. of Public Safety v. Board of Labor Relations, supra, 296 Conn. 598.

The board reversed the commissioner’s decision to revoke the permit on the basis of its following findings. McWhorter’s possession of the handgun that morning was accidental; he did not brandish or use the handgun; he appropriately alerted the arresting officer that he was carrying the handgun; he has led an otherwise law-abiding life; and he was candid, contrite and credible at his hearing. We conclude that the board reasonably inferred that McWhorter’s dangerous conduct was a single, isolated incident and, therefore, did not abuse its discretion in determining that McWhorter is a suitable person to hold a firearms permit.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 29-32b (b) provides in relevant part: “Any person aggrieved by any refusal to issue or renew a permit or certificate under the provisions of section 29-28 or 29-36f, or by any limitation or revocation of a permit or certificate issued under any of said sections . . . may, within ninety days after receipt of notice of such refusal, limitation or revocation . . . and without prejudice to any other course of action open to such person in law or in equity, appeal to the board. On such appeal the board shall inquire into and determine the facts, de novo, and unless it finds that such a refusal, limitation or revocation . . . would be for just and proper cause, it shall order such permit or certificate to be issued, renewed or restored . . .

       General Statutes § 29-32b (f) provides: “Any person aggrieved by the decision of the board may appeal therefrom in accordance with the provisions of section 4-183.”

       General Statutes § 29-28 (b) provides in relevant part: “Upon the application of any person having a bona fide residence or place of business within the jurisdiction of any such authority, such chief of police, warden or selectman may issue a temporary state permit to such person to carry a pistol or revolver within the state, provided such authority shall find that such applicant intends to make no use of any pistol or revolver which such applicant may be permitted to carry under such permit other than a lawful use and that such person is a suitable person to receive such permit. No state or temporary state permit to carry a pistol or revolver shall be issued under this subsection if the applicant (1) has failed to successfully complete a course approved by the Commissioner of Public Safety in the safety and use of pistols and revolvers including, but not limited to, a safety or training course in the use of pistols and revolvers available to the public offered by a law enforcement agency, a private or public educational institution or a firearms training school, utilizing instructors certified by the National Rifle Association or the Department of Environmental Protection and a safety or training course in the use of pistols or revolvers conducted by an instructor certified by the state or the National Rifle Association, (2) has been convicted of a felony or of a violation of subsection (c) of section 21a-279, section 53a-58, 53a-61, 53a-61a, 53a-62, 53a-63, 53a-96, 53a-175, 53a-176, 53a-178 or 53a-181d, (3) has been convicted as delinquent for the commission of a serious juvenile offense, as defined in section 46b-120, (4) has been discharged from custody within the preceding twenty years after having been found not guilty of a crime by reason of mental disease or defect pursuant to section 53a-13, (5) has been confined in a hospital for persons with psychiatric disabilities, as defined in section 17a-495, within the preceding twelve months by order of a probate court, (6) is subject to a restraining or protective order issued by a court in a case involving the use, attempted use or threatened use of physical force against another person, (7) is subject to a firearms seizure order issued pursuant to subsection (d) of section 29-38c after notice and hearing, (8) is prohibited from shipping, transporting, possessing or receiving a firearm pursuant to 18 USC 922 (g) (4), (9) is an alien illegally or unlawfully in the United States, or (10) is less than twenty-one years of age. . . .” (Emphasis added.)

       The commissioner also claimed before the trial court that the board improperly failed to determine, pursuant to § 29-28 (b), whether McWhorter intended to make an unlawful use of a permitted firearm. He has not raised this claim, however, in the present appeal.

       We note that the commissioner raised this issue before the trial court by asserting in his petition that the board’s findings were in excess of its statutory authority. The trial court’s memorandum of decision does not explicitly address the scope of the board’s review, but it appears to have assumed that the board has broad discretion.

       General Statutes § l-2z provides: “The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.”


author: PER CURIAM.

text:
    COMMISSIONER OF CORRECTION ET AL. v. FREEDOM OF INFORMATION COMMISSION ET AL. COMMISSIONER OF CORRECTION v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (AC 32409)
    Gruendel, Robinson and Alvord, Js.
    Argued April 26
    officially released June 14, 2011

      David P. Taylor, pro se, the appellant (defendant).

      Steven R. Strom, assistant attorney general, with whom were George Jepsen, attorney general, and, on the brief, Gregory T. D’Auria, senior appellate counsel, and Michael K. Skold, assistant attorney general, for the appellee (named plaintiff).
   Opinion

PER CURIAM.

The defendant David P. Taylor appeals from the judgments of the Superior Court sustaining the appeals of the plaintiffs, the commissioner of correction, Steven Petracca, Harry Soucy and AFSCME, Council 4, Local 387, from the decisions of the defendant freedom of information commission (commission) and prohibiting the disclosure of certain disciplinary records of department of correction (department) employees pursuant to General Statutes § 1-210 (c) and (b) (18) of the Freedom of Information Act (act), General Statutes § 1-200 et seq. We dismiss the defendant’s appeal as moot.

The following facts and procedural history are relevant to this appeal. In 2006, while an inmate at the Cheshire Correctional Institution (Cheshire institution), the defendant requested that the department provide him with certain employee disciplinary records pursuant to the act. The department denied his request, and, in September, 2006, he appealed to the commission. On May 4, 2007, a hearing took place before a commission hearing officer regarding the defendant’s request, during which the department claimed that the records were exempt from disclosure under the act pursuant to § 1-210 (c) and (b) (18). Although the hearing officer initially agreed with the department and found the records exempt from disclosure, the hearing officer’s decision in this regard subsequently was overruled by the commission on September 12, 2007. The commission reasoned that the department “failed to prove that there [were] reasonable grounds to believe that disclosure of [the records] . . . may result in a risk of harm” as otherwise required for exemption. As such, the commission in its decision ordered that the department disclose the records to the defendant. The plaintiffs then appealed to the Superior Court.

On November 3, 2008, the court issued a memorandum of decision sustaining the plaintiffs’ appeals, vacating the commission’s decisions ordering the disclosure of the records. In so ruling, the court described that the commission had “erred in finding that the . . . [department] failed to prove it had reasonable grounds that a safety risk may exist, so that the exemption of § 1-210 (b) (18) would not apply.” This appeal by the defendant followed.

Initially, the defendant’s appeal was transferred from this court to our Supreme Court. During the pendency of the appeal, however, it came to the Supreme Court’s attention that the passage of new legislation, specifically, Public Acts 2010, No. 10-58, § 1 (P.A. 10-58), may be dispositive of the defendant’s claim. Following supplemental briefing as to the effect of P.A. 10-58, § 1, in the present case, the defendant’s appeal was transferred back to this court. In October, 2010, a hearing was held on this court’s own motion docket to address whether the defendant’s appeal should be dismissed as moot in light of P.A. 10-58, § 1. At the conclusion of the hearing, this court ordered the defendant to file a brief addressing whether P. A. 10-58, § 1, “applies to the issues raised in this case.” The defendant complied with that order on December 8, 2010. He now claims that P.A. 10-58, § 1, does not render his appeal moot. We disagree and, accordingly, dismiss his appeal.

“Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [a] court’s subject matter jurisdiction. . . . Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ... (2) that the interests of the parties be adverse ... (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant. ...

“[A]n actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot. . . . [I]t is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. ... In determining mootness, the dispositive question is whether a successful appeal would benefit the plaintiff or defendant in any way.” (Citation omitted; internal quotation marks omitted.) Reveron v. Board of Firearms Permit Examiners, 123 Conn. App. 475, 477-78, 1 A.3d 1272 (2010).

In the present case, it is readily apparent that P.A. 10-58, § 1, renders the defendant’s appeal moot. Because P.A. 10-58, § 1, prohibits disclosure of the type of records that the defendant seeks notwithstanding the act, a successful appeal in this case would not benefit him in any way. More specifically, even if this court were to conclude that the Superior Court incorrectly determined that the records were exempt from disclosure under § 1-210 (c) and (b) (18), the defendant would nonetheless be unable to procure the records given the clear wording of P.A. 10-58, § l. Thus, the determination of the case at bar will not result in practical relief to the defendant, and, as such, his appeal is moot.

The appeal is dismissed.

       We note that, although two separate decisions of the commission were appealed to the Superior Court, for purposes of our resolution of the present appeal to this court, we need to only address the Superior Court’s judgment with respect to Taylor’s 2006 request for certain records of the department of correction empolyees.

       General Statutes § 1-210 (c) provides in relevant part: “Whenever apublic agency receives a request from any person confined in a correctional institution ... for disclosure of any public record under the Freedom of Information Act, the public agency .shall promptly notify the Commissioner of Correction ... of such request, in the manner prescribed by the commissioner, before complying with the request as required by the Freedom of Information Act. If the commissioner believes the requested record is exempt from disclosure pursuant to subdivision (18) of subsection (b) of this section, the commissioner may withhold such record from such person when the record is delivered to the person’s correctional institution . . . .”
      General Statutes § 1-210 (b) provides in relevant part: “Nothing in the Freedom of Information Act shall be construed to require disclosure of . . . (18) Records, the disclosure of which the Commissioner of Correction . . . has reasonable grounds to believe may result in a safety risk, including the risk of harm to any person or the risk of an escape from, or a disorder in, a correctional institution or facility under the supervision of the [department] . . . .”

       Although the commission also appealed from the judgments of the Superior Court, we note that on July 15,2010, it withdrew its appeals. Accordingly, Taylor is the sole appellant in the present case. Therefore, we refer to Taylor as the defendant in this opinion.

       The defendant is a Connecticut inmate serving a twenty-five year sentence for murder. See Taylor v. Commissioner of Correction, 284 Conn. 433, 438-39, 936 A.2d 611 (2007). We note that, during oral argument in this appeal, the defendant represented to this court that he has been relocated from the Cheshire institution to Osborn Correctional Institution.

       Effective upon its passage on May 26, 2010, Public Acts 2010, No. 10-58, § 1, provides in relevant part: “A personnel or medical file or similar file concerning a current or former employee of the [department] . . . including, but not limited to, a record of a security investigation of such employee by the department or an investigation by the department of a discrimination complaint by or against such employee, shall not be subject to disclosure under the [act] ... to any individual committed to the custody or supervision of the Commissioner of Correction . . . .”

       At no time has the defendant argued that the records that he seeks disclosure of under the act do not fall within the scope of P.A. 10-58, § 1.