text:
    STATE OF CONNECTICUT v. CHRISTOPHER OLSON
    (AC 29581)
    Harper, Beach and West, Js.
    Argued February 4
    officially released July 21, 2009

      Bradford Buchta, deputy assistant public defender, for the appellant (defendant).

      Toni M. Smith-Rosario, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, Maxine V. Wilensky, senior assistant state’s attorney, and Brian J. Leslie, assistant state’s attorney, for the appellee (state).
   Opinion

HARPER, J.

The defendant, Christopher Olson, appeals from the judgment of the trial court denying his motion to correct an illegal sentence. The defendant claims that the court improperly concluded that his sentence had not been imposed in an illegal manner because the court did not order that a presentence investigation report (report) be prepared prior to sentencing. We affirm the judgment of the trial court.

The following undisputed facts and procedural history are relevant to the issue before us. On August 24, 2006, the defendant, in accordance with a plea agreement with the state, appeared before the trial court and entered a guilty plea to the crime of burglary in the third degree in violation of General Statutes § 53a-103. The defendant also admitted violating the terms of his probation. See General Statutes § 53a-32. The court canvassed the defendant concerning his plea and, following the canvass, accepted the plea and made findings of guilt. The court sentenced the defendant to participate in an outpatient drug treatment program for one year, during which time he was required to submit to drag tests and to return to court at scheduled intervals for the purpose of monitoring his progress in the program. The court suspended a six year term of incarceration, instructing the defendant that he was subject to the imposition of such suspended sentence if he failed three drag tests, was discharged unsuccessfully from the treatment program, violated the rales of the program or failed to report to court as required. Also, the court instructed the defendant that he was subject to the imposition of such suspended sentence if he was arrested and the court determined that such arrest was supported by probable cause.

Subsequently, the defendant was arrested and charged with obtaining controlled substances through fraud as well as forgery in the second degree. On February 9,2007, the defendant appeared before the court for sentencing. During the hearing, the defendant admitted that he had committed the new offenses and expressed remorse for his conduct. The prosecutor and the defendant’s attorney addressed the court prior to sentencing. The prosecutor asked the court to impose the entire six year suspended sentence. The defendant’s attorney, asserting that the defendant had made good progress in the drag treatment program, asked the court to impose a less severe sentence. Relying on the newly admitted criminal violations, as well as the defendant’s failure to report to court as required during his participation in the treatment program, the court resentenced the defendant for the burglary and violation of probation offenses. The court revoked the defendant’s probation and, in total, sentenced the defendant to a six year term of incarceration. The defendant did not, at any time prior to the imposition of sentence, request that a report be prepared by the office of adult probation, object to the imposition of sentence in the absence of a report, argue that he wanted to present additional evidence to the court or argue that the court should consider any additional evidence prior to the imposition of sentence. The court did not order that a report be prepared in this case.

On October 16, 2007, the defendant filed a motion to correct an illegal sentence. Citing statutory authority and our rules of practice, the defendant argued that because he was convicted of a felony offense and received a definite sentence exceeding three years, the court improperly failed to order that a report be prepared. The defendant argued that “[his] sentence was imposed in an illegal manner because he was deprived of his right to participate in a [report], a [report] was not completed and a [report] was not considered by the court at sentencing.” By way of relief, the defendant requested, inter alia, that the court vacate his sentence, order that a report be prepared and consider the report prior to imposing a sentence at a new sentencing proceeding. The state objected to the motion.

In December, 2007, the court held a hearing on the motion to correct. At the conclusion of the hearing, the court denied the motion in an oral ruling. In its decision, the court reasoned that a report was unnecessary in light of the plea agreement and, specifically, the defendant’s participation in the treatment program. The court stated that the purpose of a report is to provide sufficient information about a defendant to the court prior to sentencing. The court reasoned, however, that it was well aware of the factors that it deemed relevant to the issue of sentencing. Specifically, the court noted that the defendant had received a suspended sentence contingent on his successful completion of the treatment program, his appearing before the court for monitoring and his avoiding arrest. The court stated that “all I want to know for sentencing [is] what [the defendant] has done since he pleaded before me and [went] into the drug intervention unit.” The court observed that it had an ample opportunity to monitor the defendant for one year for the purpose of determining whether he abided by the conditions imposed in August, 2006. The court reasoned that “that period of time [during which] I am watching the individual is a living presentence investigation.”

On appeal, the defendant raises arguments that are substantively similar to those that he raised before the trial court. The defendant requests that his sentence be vacated and that the trial court order and consider a report prior to resentencing.

“It is axiomatic that, in a criminal case, the jurisdiction of the sentencing court terminates once a defendant’s sentence has begun and a court may no longer take any action affecting a sentence unless it expressly has been authorized to act.” State v. Taylor, 91 Conn. App. 788, 793, 882 A.2d 682, cert. denied, 276 Conn. 928, 889 A.2d 819 (2005); see also State v. Tabone, 279 Conn. 527, 533-34, 902 A.2d 1058 (2006). Providing such authorization to act, Practice Book § 43-22 states: “The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.”

“An ‘illegal sentence’ is essentially one which either exceeds the relevant statutory maximum limits, violates a defendant’s right against double jeopardy, is ambiguous, or is inherently contradictory.” State v. McNellis, 15 Conn. App. 416, 443-44, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988). As explained previously, the defendant does not claim that his sentence is illegal, but that it was imposed in an illegal manner. “Sentences imposed in an illegal manner have been defined as being within the relevant statutory limits but . . . imposed in a way which violates the defendant’s right ... to be addressed personally at sentencing and to speak in mitigation of punishment ... or his right to be sentenced by a judge relying on accurate information or considerations solely in the record, or his right that the government keep its plea agreement promises . . . .” (Internal quotation marks omitted.) Id., 444; see also Borrelli v. Commissioner of Correction, 113 Conn. App. 805, 814, 968 A.2d 439 (2009). A defendant properly may challenge his criminal sentence on the ground that it was imposed in an illegal manner by filing with the trial court a motion pursuant to Practice Book § 43-22. See State v. Tabone, supra, 279 Conn. 534. We review the court’s denial of the defendant’s motion to correct the sentence under the abuse of discretion standard of review. See, e.g., id. (“[o]rdinarily a claim that the trial court improperly denied a defendant’s motion to correct an illegal sentence is reviewed pursuant to the abuse of discretion standard”); State v. Cazzetta, 97 Conn. App. 56, 60, 903 A.2d 659 (2006) (noting that reviewing court will reverse denial of motion to correct sentence only on showing that trial court abused its discretion).

General Statutes § 54-9 la (a) provides in relevant part: “No defendant convicted of a crime, other than a capital felony, the punishment for which may include imprisonment for more than one year, may be sentenced, or the defendant’s case otherwise disposed of, until a written report of investigation by a probation officer has been presented to and considered by the court . . . .” General Statutes § 54-91a (b) provides: “A defendant who is convicted of a crime and is not eligible for sentence review pursuant to section 51-195 may, with the consent of the sentencing judge and the prosecuting official, waive the presentence investigation.” General Statutes § 54-91a (c) provides: “Whenever an investigation is required, the probation officer shall promptly inquire into the circumstances of the offense, the attitude of the complainant or victim, or of the immediate family where possible in cases of homicide, and the criminal record, social history and present condition of the defendant. Such investigations shall include an inquiry into any damages suffered by the victim, including medical expenses, loss of earnings and property loss. All local and state police agencies shall furnish to the probation officer such criminal records as the probation officer may request. When in the opinion of the court or the investigating authority it is desirable, such investigation shall include a physical and mental examination of the defendant. If the defendant is committed to any institution, the investigating agency shall send the reports of such investigation to the institution at the time of commitment.”

Practice Book § 43-3 (a) provides: “If the defendant is convicted of a crime other than a capital felony, the punishment for which may include imprisonment for more than one year, the judicial authority shall order a presentence investigation, or the supplementation of any existing presentence investigation report. The judicial authority may, in its discretion, order a presentence investigation for a defendant convicted of any crime or offense.” Practice Book § 43-3 (b) provides: “A defendant who is convicted of a crime and is not eligible for sentence review pursuant to General Statutes § 51-195 may, with the consent of the sentencing judge and the prosecuting authority, waive the presentence investigation.” Practice Book § 43-4 dictates the scope of presentence investigation when such investigation is required. Practice Book § 43-5 dictates that defense counsel shall be notified when a defendant is to be interviewed and delineates the role of defense counsel at such interview. Practice Book § 43-6 dictates that in continuing a case for sentencing, the court may consider the time necessary to complete the report and “shall set a date for sentencing accordingly.”

Practice Book § 43-7 provides that the report “shall be provided to the judicial authority, and copies thereof shall be provided to the prosecuting authority and to the defendant or his or her counsel in sufficient time for them to prepare adequately for the sentencing hearing, and in any event, no less than forty-eight hours prior to the date of sentencing. ...” That provision further provides: “Upon request of the defendant, the sentencing hearing shall be continued for a reasonable time if the judicial authority finds that the defendant or his or her counsel did not receive the presentence investigation . . . within such time.” Practice Book § 43-7.

Practice Book § 43-10 requires that prior to the imposition of sentence, the court shall conduct a sentencing hearing. “The judicial authority shall afford the parties an opportunity to be heard and, in its discretion, to present evidence on any matter relevant to the disposition, and to explain or controvert the presentence investigation report . . . .” Practice Book § 43-10 (1). Practice Book § 43-13 dictates that defense counsel “shall familiarize himself or herself with the contents of the [report].” Practice Book § 43-14 dictates that defense counsel “shall bring to the attention of the judicial authority any inaccuracy in the . . . report of which he or she is aware or which the defendant claims to exist.”

In the present case, the court did not comply with the procedural requirement that it order and consider a report prior to sentencing. The aforementioned rules of practice effectuate the right codified in General Statutes § 54-91a, and, insofar as they apply and dictate that a report shall be ordered and utilized during the sentencing process, they are mandatory and not directory in nature. See, e.g., State v. Patterson, 236 Conn. 561, 577 n.15, 674 A.2d 416 (1996); State v. Williams, 205 Conn. 456, 477, 534 A.2d 230 (1987). At the time of sentencing, the defendant was eligible for a term of imprisonment of up to six years. The defendant, incident to the plea agreement entered into in August, 2006, did not waive his right to argue for a shorter sentence. Although the defendant did not object to the court’s failure to order or consider a report, the record does not reflect and the state does not argue that the defendant attempted to waive his right to a report. Neither the parties nor the court raised the issue of a report prior to sentencing. Under these circumstances, involving a defendant who faced a maximum term of incarceration of three years or more pursuant to a plea agreement and who retained the right to argue for less than such maximum penalty, we do not deem his mere failure to object to the lack of a report to represent his acquiescence in the procedure followed by the court or a waiver of his right to a report.

In presenting his motion to correct the sentence before the trial court, the defendant did not argue or present any evidence to demonstrate that information that should have appeared in the report, and was not otherwise before the court, likely would have affected his sentence. Apart from arguing that the court did not follow the proper procedural rules, the defendant did not attempt to demonstrate how the court’s error caused him prejudice with regard to the sentence imposed. In presenting this appeal, the defendant does not suggest that such a showing has been made. Instead, he argues that he need not make such a showing to prevail. The defendant argues that “the remedy for such a process error is to re-do the process as much as is possible. The availability of such a remedy does not depend on the defendant being able to show that there would have been or will be a different result if the legal requirements for a proper sentencing process had been followed or are now followed. To put it another way, the defendant did not need to show [that] he would have received a lesser sentence had all of the rules violated below not actually been violated.”

The defendant’s claim rests on the premise that the court’s failure to order a report, in itself, entitles him to the relief sought in this appeal. The state argues that the defendant bore the burden of demonstrating that he was prejudiced by the court’s failure to order a report and that the claim is subject to harmless error analysis. We agree with the state.

“It is well settled that most improprieties, even those of constitutional magnitude, can be harmless and, therefore, do not require the reversal of a defendant’s conviction. . . . [T]he appellate harmless error doctrine is rooted in that fundamental purpose of our criminal justice system—to convict the guilty and acquit the innocent. The harmless error doctrine recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence . . . and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error. . . . Accordingly, we forgo harmless error analysis only in rare instances involving a structural defect of constitutional magnitude. . . . Structural defect cases defy analysis by harmless error standards because the entire conduct of the trial, from beginning to end, is obviously affected. . . . These cases contain a defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself. . . . Such errors infect the entire trial process . . . and necessarily render a trial fundamentally unfair .... Put another way, these errors deprive defendants of basic protections without which a criminal trial cannot reliably serve its function as a vehicle for [the] determination of guilt or innocence . . . and no criminal punishment may be regarded as fundamentally fair . . . .” (Citations omitted; internal quotation marks omitted.) State v. Jenkins, 271 Conn. 165, 186-87, 856 A.2d 383 (2004).

Our Supreme Court has held that a defendant does not have a federal due process right to a report and that the procedural rule requiring a court to order a report prior to sentencing did not create a protected liberty interest in a report. State v. Patterson, supra, 236 Conn. 561. The defendant does not suggest that his claim is constitutional in magnitude and has not demonstrated that the court’s failure to order a report is a structural defect affecting the very framework of the trial. Furthermore, and directly on point, this court, in State v. Windley, 95 Conn. App. 62, 68-69, 895 A.2d 270, cert. denied, 278 Conn. 924, 901 A.2d 1222 (2006), applied a harmless error analysis in reviewing a defendant’s claim that the trial court had improperly failed to order a report. See also State v. Williams, supra, 205 Conn. 476-78 (applying harmless error analysis to claim that court improperly failed to delay sentencing in accordance with Practice Book § 43-7 after discovery that defense counsel failed to receive report in timely manner).

The only purpose of a report “is to enable the court, within the limits fixed by statute, to impose an appropriate penalty, fitting the offender as well as the crime.” Steadwell v. Warden, 186 Conn. 153, 159, 439 A.2d 1078 (1982), quoting State v. Gullette, 3 Conn. Cir. 153, 167, 209 A.2d 529 (1964). Here, the defendant was resentenced after admittedly failing to satisfy the conditions of the sentence imposed in August, 2006. Those conditions are not in dispute, nor is the fact that the defendant admittedly violated those conditions by engaging in the criminal conduct that led to his subsequent arrest. The court concluded that it had sufficient information concerning the offenses, as it had heard the defendant’s admission that he engaged in criminal conduct subsequent to the imposition of sentence in August, 2006. The court also concluded that it had sufficient information concerning the defendant’s present condition, as it had monitored the defendant’s progress in the drug treatment program. The court reasoned that it had all of the appropriate information necessary to impose a sentence pursuant to the defendant’s plea agreement that resulted in the August, 2006 sentence. The record reflects that the court afforded the prosecutor, the defendant’s attorney and the defendant an opportunity to address the court concerning the imposition of an appropriate sentence. As noted previously in this opinion, neither the defendant nor his attorney addressed the subject of the report or argued that there was any information relevant to the imposition of an appropriate sentence that was not before the court.

“The primary value of a [report] stems from the information contained therein, not from the report itself. Most of this information can be brought to the trial court’s attention by either party by means other than a [report].” State v. Patterson, supra, 236 Conn. 574-75. As was the case at the time of sentencing and in argument on the motion to correct the sentence, the defendant has not argued that any information not before the court at the time of sentencing likely would have affected the severity of his sentence. The defendant has not demonstrated that harm resulted from the absence of a report or, more specifically, that information relevant to the imposition of an appropriate sentence was not before the court as a result of the court’s failure to order a report. As was the case in Windley, “[t]he defendant has not suggested that a [report] would have uncovered any other relevant information that would have resulted in a different sentence.” State v. Windley, supra, 95 Conn. App. 69. For this reason, he has failed to demonstrate that he was harmed by the court’s failure to order a report, and we conclude that the court’s denial of his motion to correct the sentence does not reflect an abuse of its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court imposed the sentence in the burglary and violation of probation cases. With regard to the new offenses for which the defendant was arrested, the court imposed a sentence of unconditional discharge.

       The court’s oral ruling appears within the certified transcript of the proceeding at trial. The record, however, does not contain a signed transcript of the court’s decision as is required by Practice Book § 64-1 (a). “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. . . .” Practice Book § 61-10. The record does not reflect that the defendant attempted to remedy this defect pursuant to Practice Book § 64-1 (b). Nevertheless, our ability to review the claim is not hampered in the present case because we are able readily to identity in the transcript of the proceedings a sufficiently detailed and concise statement of the court’s findings. See State v. Brunette, 92 Conn. App. 440, 446, 886 A.2d 427 (2005), cert. denied, 277 Conn. 902, 891 A.2d 2 (2006).

       General Statutes § 51-195 provides in relevant part: “Any person sentenced on one or more counts of an information to a term of imprisonment for which the total sentence of all such counts amounts to confinement for three years or more, may . . . file with the clerk of the court for the judicial district in which the judgment was rendered an application for review of the sentence by the review division. ...”

       Pursuant to General Statutes § 51-195, the defendant, having received a sentence of confinement of three years or more, was eligible for sentence review. See footnote 3. Accordingly, the defendant was unable to waive the report. See General Statutes § 54-91a (b). The statutory right to apply for sentence review does not apply “in any case in which the sentence or commitment imposed resulted from the court’s acceptance of a plea agreement . . . .” General Statutes § 51-195. Because the defendant, in his plea agreement, reserved the right to argue for less than the maximum possible sentence, however, his sentence cannot be said to have resulted from the court’s acceptance of the plea agreement. See State v. Anderson, 220 Conn. 400, 407, 599 A.2d 738 (1991) (interpreting “plea agreement” as used in exceptions to § 51-195 as agreement for sentence of fixed duration); Staples v. Palten, 214 Conn. 195, 200, 571 A.2d 97 (1990) (same).

       During oral argument before this court, the defendant’s attorney acknowledged that the defendant was not claiming that but for the trial court’s procedural error, he likely would have received a lesser sentence than that imposed by the court. Nevertheless, the defendant’s attorney suggested that the court’s failure to order a report caused him prejudice during the sentence review process, for which he was eligible. The defendant’s attorney represented that the defendant had applied for sentence review and that the sentence review division had affirmed his sentence. The defendant contends that he is entitled to have his sentence vacated, to be resentenced after the court orders a report and to apply for sentence review following such resentencing.
      The defendant’s claim of prejudice is unavailing. “ [T]he relief of the legislation creating the sentence review division is to afford properly sentenced and convicted persons a limited appeal for a reconsideration of their sentence . . . rather than an avenue to correct an illegally imposed sentence. The sentence review division offers defendants an optional, de novo hearing as to the punishment to be imposed. . . . The purpose of the legislation was to create a forum in which to equalize the penalties imposed on similar offenders for similar offenses. A . . . report is used not only as an aid to the sentencing court before the sentence is imposed, but as an aid to the sentence review division in those cases in which the defendant has applied for review of a sentence properly imposed.” (Citations omitted; emphasis in original.) State v. Taylor, supra, 91 Conn. App. 794.

        On the record before us, there is no basis on which to conclude that the absence of a report prejudiced the defendant during the sentence review process. The defendant did not substantiate any claim of prejudice in this regard either before the trial court or this court, and we will not speculate that a report would have aided his claim before the sentence review division. Even were such a showing made, however, the sentence review process is wholly distinct from the imposition of sentence. This court has held that a request for a new or amended report for use before the sentence review division was materially different than a motion to correct a sentence imposed in an illegal manner. Id., 791. The former request “is not within the jurisdictional parameters of Practice Book § 43-22 . . . .” State v. Taylor, supra, 91 Conn. App. 791. Accordingly, to the extent that the defendant relied on prejudice related to the sentence review process in arguing that his sentence was imposed in an illegal manner, the court properly declined to grant relief on this ground.

       The defendant argues that Windley is distinguishable from the present case because, in contrast to the situation in this case, the defendant in Windley, having received a three year term of incarceration suspended after one year, was not eligible to apply for sentence review. See State v. Windley, supra, 95 Conn. App. 65. We are not persuaded that this factual distinction materially distinguishes Windley from the present case. As we have already discussed; see footnote 5; in determining whether a defendant has been sentenced in an illegal manner, our focus properly is on the manner in which the sentence was imposed, not the sentence review process.


source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    JORDAN PIKE v. BLAKE BUGBEE ET AL.
    (AC 29552)
    DiPentima, Robinson and West, Js.

      Argued April 22
    officially released July 21, 2009

      Juri E. Taalman, with whom, on the brief, was David W. Bush, for the appellant (plaintiff).

      Christopher J. Sochacki, with whom, on the brief, was Peter J. Ponziani, for the appellees (defendant William Bugbee et al.).
   Opinion

ROBINSON, J.

The plaintiff, Jordan Pike, appeals from the judgment of the trial court rendered in favor of the defendants William H. Bugbee and Janet W. Bugbee following the granting of their motion to strike the thirteenth count of the complaint. On appeal, the plaintiff claims that the count was legally sufficient because (1) the defendants owed a duty of care to the plaintiff to protect social invitees on their premises from foreseeable harm, (2) the allegations provided a basis for a claim for parental liability pursuant to General Statutes § 52-572, (3) the allegations of scienter precluded the granting of the motion to strike and (4) the court concluded improperly that liability did not extend to adults who did not take an active part in the procurement or purveyance of alcohol. We disagree and affirm the judgment of the trial court.

The following facts and procedural history are necessary for our resolution of the plaintiffs appeal. Because the issues concern the granting of a motion to strike, we are limited to and must accept as true the following facts as alleged in the plaintiffs complaint. See Waters v. Autuori, 236 Conn. 820, 822, 676 A.2d 357 (1996). On July 26, 2005, while the defendants were not present, the defendants’ son, Blake Bugbee, hosted a party at the defendants’ residence. The plaintiff was an invited guest of the defendants’ son. At the party, the plaintiff and fellow guests consumed alcohol or marijuana that had been provided by Blake Bugbee. Thereafter, at approximately 2:30 a.m., a fight ensued, resulting in the assault of the plaintiff by Blake Bugbee and other guests, including Christian Woodcock, Craig Blanchette and Ryan Eriksson. The plaintiff was stabbed in the abdomen and chest area and suffered significant physical injuries.

The plaintiff filed a fourteen count complaint on August 21, 2006. The only claim asserted against the defendants was count thirteen, which stated a claim sounding in negligence. On July 30,2007, the defendants filed a motion to strike this count on the ground of legal insufficiency. The plaintiff filed an objection thereto on September 5, 2007. By way of a memorandum of decision, the court granted the defendants’ motion to strike on October 30, 2007. The plaintiff filed a motion for reargument and reconsideration, which was denied by the court on November 27, 2007. The plaintiff then filed a motion for judgment, which was granted by the court on December 20,2007. This appeal followed. Additional facts will be set forth as necessary.

We begin our analysis by setting forth the applicable standard of review. “The standard of review in an appeal challenging a trial court’s granting of a motion to strike is well established. A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court’s ruling is plenary. . . . We take the facts to be those alleged in the [pleading] that has been stricken and we construe the [pleading] in the manner most favorable to sustaining its legal sufficiency.” (Internal quotation marks omitted.) Ameriquest Mortgage Co. v. Lax, 113 Conn. App. 646, 649, 969 A.2d 177, cert. denied, 292 Conn. 907, 973 A.2d 103 (2009).

In the present case, the thirteenth count sounds in negligence; however, on review of the plaintiffs argument, we note that the plaintiff has intermingled several different bases for liability, asserting the court’s failure to make specific findings relating to each individual basis. Specifically, the plaintiff asserts that he has alleged a legally sufficient cause of action for premises liability, parental liability and social host liability. Before analyzing the allegations of the complaint to determine if the facts alleged are sufficient to support each of these proposed claims, we find it useful to explore the general legal principles underlying a negligence claim.

“To prevail on a negligence claim, a plaintiff must establish that the defendant’s conduct legally caused the injuries. . . . [L]egai cause is a hybrid construct, the result of balancing philosophic, pragmatic and moral approaches to causation. The first component of legal cause is causation in fact. Causation in fact is the purest legal application of . . . legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor’s conduct. . . .

“Because actual causation, in theory, is virtually limitless, the legal construct of proximate cause serves to establish how far down the causal continuum tortfeasors will be held liable for the consequences of their actions. . . . The fundamental inquiry of proximate cause is whether the harm that occurred was within the scope of foreseeable risk created by the defendant’s negligent conduct. ... In negligence cases ... in which a tortfeasor’s conduct is not the direct cause of the harm, the question of legal causation is practically indistinguishable from an analysis of the extent of the tortfeasor’s duty to the plaintiff. . . .

“Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual. . . . Although it has been said that no universal test for [duty] ever has been formulated . . . our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised. . . .

“A simple conclusion that the harm to the plaintiff was foreseeable, however, cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed. ... A further inquiry must be made, for we recognize that duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection. . . . While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world.” (Citations omitted; internal quotation marks omitted.) Vaillancourt v. Latifi, 81 Conn. App. 541, 546-47, 840 A.2d 1209 (2004).

With these legal principles in mind, we now turn to our review of the plaintiffs arguments in support of each basis of liability.

I

The plaintiff first argues that the court improperly found that the thirteenth count was legally insufficient because the risk of injury to him was foreseeable and the defendants owed him a duty of care as a social invitee on the premises. Accordingly, the plaintiff maintains that the count contained sufficient allegations to support a cause of action for premises liability. We decline to review the merits of this claim.

On review of the underlying pleadings, we note that the plaintiff consistently has blended his claims for liability at all stages of this proceeding and, as a result, has failed to present a cogent analysis in support of a premises liability claim in the underlying matter. In the plaintiffs memorandum of law in opposition to the defendants’ motion to strike, the plaintiff argued that the defendants “were negligent and careless in that they failed to warn the plaintiff of the dangers associated with attending a party at their residence when they, as owners of the property, were not present.” The accompanying legal analysis, however, does not provide any discussion of the parents’ liability as homeowners; rather, the argument focuses on the defendants’ relationship and control over their son as a purported minor child and on their alleged liability as social hosts. In the court’s memorandum of decision granting the defendants’ motion to strike, the court did not address the applicability of premises liability, and the plaintiff did not seek articulation on this issue. As it is the duty of the appellant to provide this court with a record adequate for review, it was the plaintiffs responsibility to seek an articulation from the court as to this issue.

“It is well established that [i]t is the appellant’s burden to provide an adequate record for review. ... It is, therefore, the responsibility of the appellant to move for an articulation or rectification of the record where the trial court has failed to state the basis of a decision ... to clarify the legal basis of a ruling ... or to ask the trial judge to rule on an overlooked matter. . . . In the absence of any such attempts, we decline to review this issue. . . . [TJhis court may not surmise or speculate as to the reasons why the trial court granted the motion to strike . . . .” (Citations omitted; internal quotation marks omitted.) Hollister v. Thomas, 110 Conn. App. 692, 708, 955 A.2d 1212, cert. denied, 289 Conn. 956, 961 A.2d 419 (2008); see also Practice Book §§ 60-5 and 66-5. Accordingly, we decline to reach the issue of whether the court improperly failed to evaluate the thirteenth count as a claim sounding in premises liability.

II

The plaintiff next claims that the court improperly granted the motion to strike the thirteenth count because the allegations provided a legally sufficient basis for a claim under § 52-572, which sets forth a statutory basis for parental liability. We disagree.

Pursuant to § 52-572 (a): “The parent or parents or guardian ... of any unemancipated minor or minors, which minor or minors wilfully or maliciously cause damage to any property or injury to any person . . . shall be jointly and severally liable with the minor or minors for the damage or injury to an amount not exceeding five thousand dollars, if the minor or minors would have been liable for the damage or injury if they had been adults.” The plaintiff argues that he pleaded sufficient facts to pursue a cause of action against the defendants for the tortious acts of their son, Blake Bugbee.

Our review of the plaintiffs complaint reveals that the plaintiff does not reference § 52-572 specifically. Practice Book § 10-3 (a) provides: “When any claim made in a complaint, cross complaint, special defense, or other pleading is grounded on a statute, the statute shall be specifically identified by its number.” Our Supreme Court has recognized, however, that, “[a]s long as the defendant is sufficiently apprised of the nature of the action . . . the failure to comply with the directive of Practice Book § 10-3 (a) will not bar recovery.” (Internal quotation marks omitted.) Caruso v. Bridgeport, 285 Conn. 618, 628, 941 A.2d 266 (2008).

Notwithstanding the lack of a specific reference to § 52-572, the plaintiffs complaint suffers from a more significant deficiency; the minority status of Blake Bugbee is not alleged. Although the plaintiff refers to Blake Bugbee as the defendants’ minor son in subsequent filings, the question before us is whether the complaint contains sufficient factual allegations to support the claim. Here, the complaint lacks a specific allegation of his age and does not reference the statute that would indicate the plaintiffs intention to allege the defendants’ vicarious liability for the actions of their minor son. Furthermore, even when the pleadings are construed broadly, the minority of Blake Bugbee is not a reasonable inference that can be derived from the facts alleged. The plaintiffs claim is, therefore, without merit.

m

The plaintiff next argues that the court improperly concluded that although the harm to him was foreseeable, liability in this situation does not extend to adults who took no active part in the procurement or purveyance of alcohol. We disagree.

The common-law rule regarding social host liability in Connecticut states that “no tort cause of action [lies] against one who furnished, whether by sale or gift, intoxicating liquor to a person who thereby voluntarily became intoxicated and in consequence of his intoxication injured the person or property either of himself or of another. The reason generally given for the rule was that the proximate cause of the intoxication was not the furnishing of the liquor, but the consumption of it by the purchaser or donee. The rule was based on the obvious fact that one could not become intoxicated by reason of liquor furnished him if he did not drink it.” (Internal quotation marks omitted.) Rangel v. Parkhurst, 64 Conn. App. 372, 379, 779 A.2d 1277 (2001).

In Ely v. Murphy, 207 Conn. 88, 540 A.2d 54 (1988), our Supreme Court recognized this common-law principle; however, the court then proceeded to carve out an exception for circumstances in which alcohol is furnished to a minor. The court noted that the “proposition that intoxication results from the voluntary conduct of the person who consumes intoxicating liquor assumes a knowing and intelligent exercise of choice, and for that reason is more applicable to adults than to minors.” Id., 93. The court then recognized various legislative enactments that were indicative of “a continuing and growing public awareness and concern that children as a class are simply incompetent by reason of their youth and inexperience to deal responsibly with the effects of alcohol.” Id., 94. Ultimately, the court concluded that “[i]n view of the legislative determination that minors are incompetent to assimilate responsibly the effects of alcohol and lack the legal capacity to do so, logic dictates that their consumption of alcohol does not, as a matter of law, constitute the intervening act necessary to break the chain of proximate causation and does not, as a matter of law, insulate one who provides alcohol to minors from liability for ensuing injury.” Id., 95.

In the present case, the plaintiff alleged that he was injured at a party where alcohol and marijuana were supplied to minors. On appeal, he contends that he pleaded sufficient facts to establish that the defendants were, “under the circumstances, adults who were social hosts and who, through their son, who was acting as their agent and with their knowledge, purveyed alcohol to minors.” On review of the complaint, we note, as the trial court did, that the plaintiff does not allege that the plaintiff or his assailants were minors. Instead, the thirteenth count alleges that “Blake Bugbee, Christian Woodcock, Craig Blanchette and/or Ryan Eriksson consumed a sufficient quantity of alcohol and/or marijuana to have become intoxicated and did in fact become intoxicated.” The plaintiff further alleges that “at said time and place, while in an intoxicated condition, Blake Bugbee, Christian Woodcock, Craig Blanchette and/or Ryan Eriksson stabbed Jordan Pike . . . .” Significantly, the only references to minors in count thirteen included general allegations that the defendants “knew or should have known that when they were not present at the residence, their son, Blake Bugbee, held parties, which included individuals who were consuming alcohol and were not of legal age to consume alcohol . . . .” The plaintiff also alleged that Blake Bugbee provided alcohol “to individuals attending the party, including minors . . . .” Even when viewing the complaint broadly, the allegation that minors attended the party and were supplied alcohol does not in itself implicate the exception to the common-law principle limiting social host liability. In Ely, the court specifically acknowledged that the exception created by its analysis does not stand for the proposition that “the social host or other purveyor of alcohol is absolutely liable to the minor served or innocent third parties thereafter injured. Rather, the matter of proximate cause of the injury and ensuing damage becomes one of fact to be determined in each instance by the court or jury as the parties elect.” Ely v. Murphy, supra, 207 Conn. 97.

As developed in our case law, the exception is intended to ensure that a social host or purveyor of alcohol remains liable to the minor served or to innocent third parties thereafter injured if the damages were proximately caused by the service of alcohol and the minor’s consumption of it. See, e.g., Rangel v. Parkhurst, supra, 64 Conn. App. 379; Bohan v. Last, 236 Conn. 670, 677, 674 A.2d 839 (1996). Here, there were no allegations that the intoxicated individuals involved in the assault were minors, and, absent such an allegation, the plaintiff failed to assert sufficient facts to establish a basis for the defendants’ liability. We need not determine whether the defendants were social hosts or purveyors of alcohol because the mere attendance of the party by minors is not itself, standing alone, indicative of the defendants’ liability when there is no allegation that the resulting damage was caused by the intoxicated minor. We therefore conclude that the court properly granted the defendants’ motion to strike.

IV

The plaintiff also argues that count thirteen contained sufficient allegations of the defendants’ scienter to preclude the granting of the defendants’ motion to strike. The specific allegation contained in paragraph 19d states: “[The defendants] failed to prevent their son, Blake Bugbee, from providing alcohol to individuals attending the party, including minors when they knew or should have known said individuals would become violent after the consumption of alcohol/drugs . . . .”

The plaintiff does not state specifically which claim is supported by this allegation. Furthermore, his contention that the existence of this allegation precludes the granting of a motion to strike is premised on a misreading of nonbinding authority. Accordingly, we are not persuaded by this argument.

The judgment is affirmed.

In this opinion the other judges concurred.

       The complaint alleged causes of action against several defendants, including Blake Bugbee, Christian Woodcock, Craig Blanchette and Ryan Eriksson. These defendants are not parties to the present appeal and will be referred to by name when necessary. For the purposes of our discussion, all references to the defendants are to William H. Bugbee and Janet W. Bugbee.

       The court also granted the defendants’ motion to strike count one of a cross claim filed by Woodcock. As noted by the court, “[c]ount thirteen of the complaint and count one of the cross claim allege the same cause of action against the [defendants] for negligence, just with different victims.” The motion to strike the cross claim is not an issue currently before us.

       We acknowledge that the plaintiff did file a motion for reargument and reconsideration following the court’s decision to grant the defendants’ motion to strike. By way of this motion, however, the plaintiff sought reconsideration of the court’s refusal to construe the pleadings broadly to infer the minority status of the plaintiffs alleged assailants, including the defendants’ son. Moreover, the plaintiff specifically contested the court’s failure to consider or to render a ruling on his claim that the complaint contained sufficient facts to support a claim for the defendants’ statutory liability as parents pursuant to § 52-572. The plaintiff did not raise a similar argument regarding the court’s failure to address the claim of premises liability.

       Although our review is bound by the facts alleged in the complaint, we do note that the plaintiff stated at oral argument that Blake Bugbee was nineteen years of age at the time of the incident. Therefore, while a nineteen year old is a minor for the purposes of consumption of alcohol; General Statutes § 30-1 (12); a nineteen year old would not be a minor for the purposes of § 52-572. See General Statutes § 1-ld.

       The plaintiff argues that the court cannot consider his failure to allege the minority status of Blake Bugbee in the complaint because the defendants did not raise that issue in their motion to strike. The plaintiff does not provide any pertinent authority to support this proposition. Furthermore, we are not persuaded by the plaintiffs attempts to cast his claim as a chameleon, where the legal basis for the claim changes to survive any argument attacking the legal sufficiency of the claim.
      It is a well established principle that Connecticut is a fact pleading jurisdiction. See Practice Book § 10-1. “Pleadings have an essential purpose in the judicial process. . . . The purpose of pleading is to apprise the court and opposing counsel of the issues to be tried . . . (Internal quotation marks omitted.) Somers v. Chan, 110 Conn. App. 511, 528, 955 A.2d 667 (2008). Although the court is required to read the pleadings broadly and in the light most favorable to sustaining the legal sufficiency of the claim, it cannot read additional allegations into the pleading, particularly when the allegation of Blake Bugbee’s age is directly relevant to the plaintiffs purported claim.
      Moreover, we note that our rules of practice allow a party to timely replead a claim that has been stricken, thereby providing a method for deficient pleadings to be remedied in the event that an alternative legal theory was not considered by the court when a motion to strike a claim for legal insufficiency is granted. See Practice Book § 10-44.

       In support of Ms argument, the plaintiff references a trial court decision, Silk v. Gill, Superior Court, judicial district of Litchfield, Docket No. CV-05-4002254-S (September 15, 2005) (Bozzuto, J.) (40 Conn. L. Rptr. 14), which addressed the liability of parents when their minor child hosted a party in their absence. Specifically, the plaintiff argues that the court in Silk “observed that the allegations of scienter by the parents in paragraph 8d of the complaint precluded the granting of a motion to strike that subparagraph and noted approvingly that the defendants’ motion to strike in that case had specifically not been directed at paragraph 8d.”
      On review of the court’s analysis, however, it is apparent that the plaintiff has misconstrued the court’s holding. In Silk, the defendant did not move to strike the allegation that the parents knew or “should have known that their son would host a party where alcoholic beverages would be served” to minors; id., 17; and the court acknowledged that such an allegation implicates a different breach of a duty. This acknowledgment, however, does not stand for the proposition that a motion to strike would be inappropriate in any circumstance. Furthermore, we also note that the present matter is distinguishable from Silk because the plaintiff has failed to assert the minor status of himself or his purported assailants.


author: HENNESSY, J.

text:
    LISA LABBE v. MICHAEL CARUSONE
    (AC 30357)
    Flynn, C. J., and Bishop and Hennessy, Js.

      Argued March 12
    officially released July 21, 2009

      Michael J. Whalen, for the appellant (plaintiff).

      Frank H. Cathcart, for the appellee (defendant).
   Opinion

HENNESSY, J.

The plaintiff, Lisa Labbe, on behalf of her minor daughter, Rahshaiya Smith, appeals after a court trial from the judgment rendered in favor of the defendant, Michael Carusone. The plaintiff claims that the court improperly found that she had failed to prove (1) that the defendant transferred property in the name of Carusone Associates, LLC, to himself without receipt of a reasonable equivalent in value, (2) that the defendant committed fraud by transferring property without compensation, thereby rendering the transferor unable to meet its obligations and (3) justification for piercing the corporate veil. We affirm the judgment of the trial court.

The plaintiff recovered a judgment against Carusone Associates, LLC, on May 29, 2007, in the amount of $82,533.55. That judgment stemmed from an incident in February, 2006, when Smith was scalded by hot water in the bathroom sink of 104 Bunker Avenue, Meriden (Bunker property). At the time of the incident, the plaintiff was a tenant at the Bunker property. Smith was injured prior to the time the defendant became the title owner to the property. At the time Smith was injured, Carusone Associates, LLC, was the title owner of the property and against whom the judgment was rendered. The defendant first learned of the action when he was sent notice of judgment in November, 2007.

The present action is brought by the plaintiff to recover on the judgment against Carusone Associates, LLC. The plaintiff, in a two count complaint, alleged fraud in the first count, and she attempted to pierce the corporate veil in the second count. The court found that on May 28, 2004, as part of an agreement, the defendant conveyed to Carusone Associates, LLC, six parcels of land, including the Bunker property. Also pursuant to this agreement, the defendant assigned 100 percent of his membership interest in Carusone Associates, LLC, to Meriden Associates (Meriden). Meriden pledged its membership as security for its obligations to the defendant in connection with the defendant’s assignment of the membership interest. Although the defendant had no further involvement with the dealings of Carusone Associates, LLC, he continued to be personally liable on the notes and mortgages on the conveyed properties.

When Meriden failed to make the payments owed to the banks, which was part of Meriden’s pledge as security for its obligation to the defendant, the defendant, in accordance with his rights under the agreement, transferred the Bunker property and the property at 1079 Broad Street (Broad property) to himself on May 3, 2006. The defendant offered to sell the properties to Samuel Braun for $25,000 to make the mortgage payments, but the sale did not take place.

In a memorandum of decision, the court found in favor of the defendant on both counts. The plaintiff appeals from that judgment. Additional facts will be set forth as necessary.

I

The plaintiff makes two claims regarding the fraud count. She first claims that it was improper for the court not to find that the defendant transferred property in the name of Carusone Associates, LLC, to himself individually, without receipt of reasonable value. She further claims that this conveyance rendered the transferor unable to meet its obligations. Because we employ the same standard of review to both claims, we will address them together. The defendant argues that the court properly found that the plaintiff had not sustained her burden of proof. We agree with the defendant.

The court, referring to the plaintiffs complaint alleging fraud on the part of the defendant, reviewed the facts as they applied to General Statutes § 52-552e (a), which provides in relevant part: “A transfer made . . . by a debtor is fraudulent as to a creditor, if the creditor’s claim arose before the transfer was made or the obligation was incurred and if the debtor made the transfer or incurred the obligation: (1) With actual intent to hinder, delay or defraud any creditor of the debtor; or (2) without receiving a reasonably equivalent value in exchange for the transfer or obligation . . . .” The court also relied on the principles set forth in Wendell Corp. Trustee v. Thurston, 239 Conn. 109, 680 A.2d 1314 (1996), which states: “In the area of fraudulent conveyances, we have held that [t]he party seeking to set aside a conveyance as fraudulent bears the burden of proving either: (1) that the conveyance was made without substantial consideration and rendered the transferor unable to meet his obligations', or (2) that the conveyance was made with a fraudulent intent in which the grantee participated.” (Emphasis in original; internal quotation marks omitted.) Id., 115-16. “The determination of whether a fraudulent transfer took place is a question of fact and it is axiomatic that [t]he trial court’s [factual] findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . The elements of fraudulent conveyance, including whether the defendants acted with fraudulent intent, must be proven by clear, precise and unequivocal evidence.” (Citation omitted; internal quotation marks omitted.) Certain Underwriters at Lloyd’s, London v. Cooperman, 289 Conn. 383, 395, 957 A.2d 836 (2008).

The basis for the plaintiffs claims, is the defendant’s admission that he executed a quitclaim deed to the Bunker and Broad properties to himself for no consideration. The court concluded that because the defendant did not own the property on the date Smith was injured; did not have any involvement with Carusone Associates, LLC, until he conveyed the properties to himself in May, 2006; transferred the properties to himself in accordance with the terms of his agreement with Carusone Associates, LLC, and the property at the time of the transfer had zero equity, there was no convincing proof of fraud on the part of the defendant. Further, the court found that the plaintiff had not shown that the conveyance of the property rendered the transferor unable to meet its obligations. In fact, there was no evidence presented to show that Carusone Associates, LLC, cannot meet its obligations to the plaintiff. On the basis of the court’s findings of fact regarding the longstanding agreements between the defendant, Carusone Associates, LLC, and Meriden as well as the findings regarding the status of the mortgage notes when the parcels were conveyed, we conclude that the court properly rendered judgment in favor of the defendant on the claim of fraud.

II

Our inquiry does not end, however, with the conclusion that the evidence failed to prove the elements of the fraud. The plaintiff urges this court to conclude that the trial court improperly found that she failed to prove justification for piercing the corporate veil. Alternatively, the plaintiff claims that the court should have found that the instrumentality rule applied to this case. The defendant argues that the plaintiff is asking this court to redetermine facts and to conclude, ultimately, that the trial court abused its discretion in rendering judgment in favor of the defendant. We agree with the defendant.

“[W]hether the corporate veil [should be] pierced presents a question of fact . . . such that we must defer to the court’s findings of fact unless they are clearly erroneous.” (Citation omitted; internal quotation marks omitted.) Litchfield Asset Management Corp. v. Howell, 70 Conn. App. 133, 148, 799 A.2d 298, cert. denied, 261 Conn. 911, 806 A.2d 49 (2002). “Courts will . . . disregard the fiction of a separate legal entity to pierce the shield of immunity afforded by the corporate structure in a situation in which the corporate entity has been so controlled and dominated that justice requires liability to be imposed on the real actor.” (Internal quotation marks omitted.) Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., 187 Conn. 544, 552, 447 A.2d 406 (1982). This state recognizes two theories under which it will permit the protection of the corporate structure to be set aside, the instrumentality rule and the identity rule. Morris v. Cee Dee, LLC, 90 Conn. App. 403, 414, 877 A.2d 899, cert, granted on other grounds, 275 Conn. 929, 883 A.2d 1245 (2005) (appeal withdrawn March 13, 2006).

“The instrumentality rule requires . . . proof of three elements: (1) Control, not mere majority or complete stock control, but complete domination, not only of finances but of policy and business practice in respect to the transaction attacked so that the corporate entity as to this transaction had at the time no separate mind, will or existence of its own; (2) that such control must have been used by the defendant to commit fraud or wrong, to perpetrate the violation of a statutory or other positive legal duty, or a dishonest or unjust act in contravention of [the] plaintiffs legal rights; and (3) that the aforesaid control and breach of duty must proximately cause the injury or unjust loss complained of. . . .

“The identity rule has been stated as follows: If [the] plaintiff can show that there was such a unity of interest and ownership that the independence of the corporations had in effect ceased or had never begun, an adherence to the fiction of separate identity would serve only to defeat justice and equity by permitting the economic entity to escape liability arising out of an operation conducted by one corporation for the benefit of the whole enterprise.” (Citations omitted; internal quotation marks omitted.) Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., supra, 187 Conn. 553-54.

A review of the record clearly shows that the defendant, unaware of the plaintiffs legal action, transferred the properties to himself in accordance with the terms of the agreement dated May 28, 2004. The court found, and the record does not contain information to dispute the fact, that once title to the properties was conveyed by the defendant to Carusone Associates, LLC, in May, 2004, the defendant had no involvement with Carusone Associates, LLC. Further evidence of the defendant’s independence from Carusone Associates, LLC, highlighted by the court, was that in July, 2005, and February, 2006, Carusone Associates, LLC, conveyed the Broad property and 168 Cook Avenue, two of the six properties originally conveyed from the defendant, to other persons. The record is clear that the defendant did not have the unity of interest and ownership such that the independence of the corporations, Carusone Associates, LLC, and Meriden, and the defendant, ceased to exist; it also is clear that there was no present control used by the defendant to commit fraud, nor was the alleged control a proximate cause of the loss complained of. The court was correct in finding that the instrumentality rule and the identity rule did not apply on the basis of the facts found, and, therefore, the corporate veil could not be pierced on that basis.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs claim alleging a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., was withdrawn at trial.

       When the properties were transferred to the defendant, they were worth $400,000. At that time, the balance due on a promissory note payable by Carusone Associates, LLC, and Meriden to Berbero Management Corporation secured by a mortgage on the properties was $240,000, with a further balance on existing loans of $250,000 and another $50,000 owed for water, sewer and property taxes.

       During the trial, the plaintiffs counsel stated: “I will admit that the allegation [of fraud] requires proof that was not presented in this hearing. I think the characterization of the transfer in being fraudulent, in that if it was done without consideration rendering the debtor insolvent, I think does create a fraud, but I’m not saying that there was an intent to defraud this particular [plaintiff] in that situation.”


author: Per Curiam.

text:
    JERMAINE JONES v. COMMISSIONER OF CORRECTION
    (AC 28968)
    Gmendel, Alvord and Pellegrino, Js.
    Argued April 27
    officially released June 16, 2009
   Per Curiam.

The appeal is dismissed.


text:
    KENNETH BOVE v. HOWARD W. BOVE ET AL.
    (AC 29751)
    Beach, Robinson and Mihalakos, Js.
    Argued May 19
    officially released June 16, 2009
   Per Curiam.

The judgment is affirmed and the case is remanded to the trial court with direction to set a new sale date.


text:
    JOHN VIVO III v. COMMISSIONER OF CORRECTION
    (AC 29561)
    Bishop, Harper and Mihalakos, Js.
    Argued May 27
    officially released June 16, 2009
   Per Curiam.

The appeal is dismissed.


text:
    PAUL GOVANG ET AL. v. MICHAEL ESPOSITO ET AL.
    (AC 30428)
    Bishop, DiPentima and Gruendel, Js.
    Argued May 28
    officially released June 16, 2009
   Per Curiam.

The judgment is affirmed.


text:
    ARGENT MORTGAGE COMPANY, LLC v. RICHARD CZARASTY, JR.
    (AC 29606)
    Gruendel, Beach and Peters, Js.
    Submitted on briefs June 3
    officially released June 16, 2009
   Per Curiam.

The judgment is affirmed.


text:
    LISA D. EGAN v. PAUL B. EGAN
    (AC 30333)
    Flynn, C. J., and Alvord and Hennessy, Js.
    Argued June 2
    officially released June 16, 2009
   Per Curiam.

The judgment is affirmed.