author: BEAR, J. LAYINE, J.,

text:
    DONALD K. WIEGAND v. CORINNE M. WIEGAND
    (AC 31773)
    Lavine, Bear and West, Js.

      Argued April 18
    officially released June 21, 2011

      Donald K. Wiegand, pro se, the appellant (plaintiff).
   Opinion

BEAR, J.

The plaintiff, Donald K. Wiegand, appeals from the judgment of the trial court dissolving his marriage to the defendant, Corinne M. Wiegand, and entering certain financial and property distribution orders. On appeal, the plaintiff claims that the court improperly (1) failed to give him the protection afforded him by Practice Book § 25-5 (a) (1), (2) demonstrated prejudice against him, (3) failed to award him alimony, thus leaving him destitute, and (4) entered financial and property distribution orders that were one-sided, the language of which would cause further disputes. We reverse in part and affirm in part the judgment of the trial court.

The plaintiff and the defendant were intermarried on April 1, 1989. There were no children bom of the marriage. On January 16, 2009, the plaintiff, acting pro se, filed a complaint seeking dissolution of the parties’ marriage. On January 27, 2009, the defendant, also acting pro se, filed her answer. The plaintiff, the defendant and one additional witness, David Stegmeir, testified during the trial, wherein the court extensively questioned the parties and Stegmeir. After the trial, the court, finding that the marriage had broken down irretrievably, granted the dissolution and entered financial and property distribution orders. It did not award alimony to either party. This appeal followed. Additional facts will be set forth as necessary.

“The standard of review in family matters is well settled. An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record or as a whole. ... A finding of fact is clearly erroneous when there is no evidence to support it ... or when although there is evidence in the record to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Desai v. Desai, 119 Conn. App. 224, 227-28, 987 A.2d 362 (2010). “A fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria. . . . This standard of review reflects the sound policy that the trial court has the opportunity to view the parties first hand and is therefore in the best position to assess all of the circumstances surrounding a dissolution action, in which such personal factors such as the demeanor and the attitude of the parties are so significant.” (Internal quotation marks omitted.) de Repentigny v. de Repentigny, 121 Conn. App. 451, 460, 995 A.2d 117 (2010).

I

The plaintiff first claims that the court failed to give him the protection afforded him by Practice Book § 25-5 (a) (l). He argues that the defendant and her live-in friend, Stegmeir, violated the automatic orders of the court and disposed of many items of the plaintiffs personal property that had remained in the marital home, and the court improperly denied the plaintiff a full opportunity to question them about the disposal of these items. We are not persuaded.

The following additional facts are relevant to our analysis. The defendant, who has a heart condition, testified that throughout the years the plaintiff had been unwilling to unpack when they moved and that he had left boxes outside, on the patio, in the living room, the den and the sun room. She stated that it was difficult to cope with living out of boxes and that she had tried to explain that to the plaintiff, but he was not responsive; rather, he spent his time playing on the computer. The plaintiff admitted that many boxes were never unpacked, but he alleged that this was because he wanted the defendant to go through the contents of each box with him but that she was unwilling.

Stegmeir, a friend, whom the defendant met via an Internet chat room, testified that he first met the defendant in person when he went to the parties’ home in mid-November, 2008, “because [he had] heard over the telephone the plaintiff threatening [the defendant] and basically threatening to kill himself and her and her dog . . . .” Stegmeir further testified that upon arriving at the parties’ home, “[t]he outside of the house was completely stacked with boxes and debris. The inside of the house you could barely walk into. The living room was stacked from floor to ceiling, front to back, with numerous boxes and containers. Basically, every room in the house was that way. So, I volunteered to help them put the stuff away, but it was full of mold, mildew, water, bugs. It was just a horrible mess.” Stegmeir also stated that it took him approximately six months to sort through the items and to separate the plaintiffs belongings from the defendant’s belongings. Many of the items, however, were covered in mold and mildew, creating a health hazard, which Stegmeir stated he had to pay a junk man to remove. Stegmeir also stated that he and the defendant are roommates but that they are not romantically involved in any way.

The plaintiff cross-examined Stegmeir, asking him if he was aware that disposing of these belongings was a violation of the automatic orders set forth in Practice Book § 25-5 (a) (1). The court interrupted the plaintiffs line of questioning, explaining that Stegmeir was not a party to the litigation. The plaintiff responded that by removing the belongings, Stegmeir had become a party. The court reiterated that Stegmeir was not a party and told the plaintiff to move on.

The record does not reveal that the plaintiff filed a motion for contempt for the defendant’s alleged violation of Practice Book § 25-5 (a) (1). The record also does not reveal any facts found by the court regarding the disposal of these belongings, nor does the record contain any indication as to the contents of the boxes. It seems apparent, however, that the court credited the testimony of Stegmeir that the belongings were moldy and in need of disposal. See generally Rubenstein v. Rubenstein, 107 Conn. App. 488, 497, 945 A.2d 1043 (“It is the sole province of the trial court to weigh and interpret the evidence before it and to pass on the credibility of the witnesses. ... It has the advantage of viewing and assessing the demeanor, attitude and credibility of the witnesses and is therefore better equipped than we to assess the circumstances surrounding the dissolution action.” [Citation omitted; emphasis omitted; internal quotation marks omitted.]), cert. denied, 289 Conn. 948, 960 A.2d 1037 (2008). Furthermore, although the plaintiff filed a motion for articulation asking the court to articulate ten different matters, none of the matters related to the disposal of his belongings.

The plaintiff has pointed to nothing in the record that would convince us that the court acted improperly in directing him to move on with his questioning of Stegmeir, who was not a party to the litigation, regarding his possible violation of the automatic orders in Practice Book § 25-5 (a) (1) by the disposal of these belongings. On the basis of the record before us, we conclude that the court handled the matter properly.

n

Although he did not raise the issue at trial, the plaintiff claims on appeal that the court demonstrated prejudice against him during the hearing. He argues that the court treated him in a hostile and unethical manner, while always treating the defendant politely. The plaintiff especially is concerned about the court’s alleged disinterest in the defendant’s cancellation of the plaintiffs AOL Internet account and his efforts to explain the restraining order that had been issued against him. The plaintiff provides no citations to or analysis of case law to support a claim of judicial bias; see Watkins v. Thomas, 118 Conn. App. 452, 455-56, 984 A.2d 106 (2009); nor did he preserve his claim of judicial bias in accordance with Practice Book § 1-23. Furthermore, the plaintiff has not requested that we review his claim under the plain error doctrine. Nevertheless, because claims of judicial bias strike at the very core of judicial integrity and implicate the basic concepts of a fair trial, we will review the plaintiffs claim.

“Accusations of judicial bias . . . implicate the basic concepts of a fair trial. . . . The appearance as well as the actuality of [partiality] on the part of the trier will suffice to constitute proof of bias sufficient to warrant disqualification.” (Internal quotation marks omitted.) Watrous v. Watrous, 108 Conn. App. 813, 834, 949 A.2d 557 (2008). Canon 3 (c) (1) of the Code of Judicial Conduct (2009), which was in effect when this case was tried, provides in relevant part: “A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: (A) the judge has a personal bias or prejudice concerning a party . . . .’’To prevail on his claim of a violation of this canon, the plaintiff need not show actual bias. The plaintiff has met his burden if he can prove that the conduct in question gave rise to a reasonable appearance of impropriety. See Watrous v. Watrous, supra, 834.

“A trial judge, as a minister of justice, should be both cautious and circumspect in his language and conduct and should conduct a trial with the highest degree of impartiality. ... A judge . . . should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. . . . The trial judge should be the exemplar of dignity and impartiality. . . . The trial court is responsible for maintaining a calm demeanor and the decorum of the courtroom.” (Citations omitted; internal quotation marks omitted.) Lo Sacco v. Young, 20 Conn. App. 6, 11, 564 A.2d 610, cert. denied, 213 Conn. 808, 568 A.2d 793 (1989).

The plaintiff points to several instances where the court interrupted the plaintiffs testimony and redirected him, including when the plaintiff attempted to explain that he was upset by the defendant’s cancellation of the AOL account, which he states may have cost him a job, and his attempt to explain the circumstances surrounding the restraining order to which he was subject. Although we understand the plaintiffs desire to tell his side of the story and to air fully his differences with the defendant, a review of the record reveals that the court was attempting to keep both parties focused on evidence relevant to the issues in the case instead of unhelpful accusations, blame or the relaying of other irrelevant material. It is the court’s responsibility to take those steps necessary to ensure the orderly progress of the hearing. See LaBow v. LaBow, 13 Conn. App. 330, 334, 537 A.2d 157, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988).

We are mindful that the court, at times, demonstrated some frustration and impatience with the plaintiff; however, we conclude that its statements were impartial and were meant to keep the plaintiff focused on relevant evidence that properly could be considered by the court. See generally id. The court also redirected the defendant on several occasions. The transcript of the hearing does not reveal any apparent bias against the plaintiff or in favor of the defendant. Although the court may have interrupted the plaintiffs testimony or questioning, it is apparent that the court was attempting to keep the testimony relevant and focused. “[I]t is often repeated in our case law that a trial court has wide discretion to determine whether to admit evidence.” Travelers Property & Casualty Co. v. Christie, 99 Conn. App. 747, 758, 916 A.2d 114 (2007).

Our thorough review of the record does not reveal anything that leads us to question the judge’s impartiality in this case. Clearly, a finding of plain error is not warranted.

Ill

The plaintiff next claims that the court improperly failed to award him alimony, thus leaving him destitute. He argues that he is unemployed, yet, the court failed to award him alimony while allocating to him 72 percent of the marital debt. We agree that the court abused its discretion in failing to award some type of alimony to the plaintiff.

“We begin our analysis by noting that . . . the purpose of alimony [is] the obligation of support that spouses assume toward each other by virtue of the marriage. . . . This court has stated that [a]limony is always represented by money and is damages to compensate for loss of marital support and maintenance. ... In other words, alimony represents the court’s finding, measured in dollars, of the financial needs of the receiving spouse at the time of the dissolution.” (Internal quotation marks omitted.) Lehan v. Lehan, 118 Conn. App. 685, 696, 985 A.2d 378 (2010).

“[General Statutes §] 46b-82 governs awards of alimony. That section requires the trial court to consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties .... In awarding alimony, [t]he court must consider all of these criteria. ... It need not, however, make explicit reference to the statutory criteria that it considered in making its decision or make express findings as to each statutory factor.” (Internal quotation marks omitted.) Kovalsick v. Kovalsick, 125 Conn. App. 265, 271, 7 A.3d 924 (2010).

As this court explained in Kovalsick-. “[W]e recognize that it is generally uncommon for a reviewing court to determine that the trial court has abused its broad discretion in deciding whether to award alimony and otherwise craft financial orders in a dissolution decree. Reluctance to reverse the trial court’s exercise of discretion, however, should not mean that the door is entirely closed to successful appeals in dissolution cases. . . . Gervais v. Gervais, 91 Conn. App. 840, 846, 882 A.2d 731, cert. denied, 276 Conn. 919, 888 A.2d 88 (2005). Our appellate courts have reversed excessive or inequitable financial orders. See Greco v. Greco, 275 Conn. 348, 356-60, 880 A.2d 872 (2005) (reversing financial orders when 98.5 percent of marital property and substantial alimony awarded to one spouse); Pellow v. Pellow, 113 Conn. App. 122, 129, 964 A.2d 1252 (2009) (reversing financial orders when orders consumed 90 percent of paying spouse’s income).” (Internal quotation marks omitted.) Kovalsick v. Kovalsick, supra, 125 Conn. App. 272.

In Kovalsick, the trial court had found that the parties were equally educated and that the plaintiff was bilingual, thus giving her an advantage in the job market. Id., 274. The trial court, despite the actual earning disparity between the parties, declined to award time limited alimony to the plaintiff. Id. The court had found that the plaintiff, throughout the marriage, had earned only $13 to $15 per hour, while the defendant historically had earned approximately five times that amount. Id., 267. On appeal, this court found that there had been no evidence presented to demonstrate that the plaintiff was capable of earning more than she historically had earned without further education and training. Id., 274. We also noted that the evidence showed that the plaintiff “was not able to meet her obligations, which included the payments on the [marital] debt.” Id., 274-75. After considering the record, we concluded that “[i]t [was] reasonably foreseeable that, if the court’s financial orders [were] allowed to stand and the plaintiff continue [d] to be responsible for the entire debt but [was] unable either to increase her earning capacity or to receive alimony or a portion of the marital property, she could well be in dire financial straits.” Id., 275.

We held in Kovalsick that the goal of fairness was not served by the outright refusal to order alimony under the facts presented in that case. Id. In that case, we were guided by our decision in Greco v. Greco, supra, 275 Conn. 363, which held that: “Under the trial court’s order, the defendant was forced to the brink of abject poverty by his obligations to pay the required alimony and insurance premiums, and then stripped of any means with which to pay them by the disproportionate division of the marital assets. Such an order constitutes an abuse of discretion in light of the defendant’s age, poor health and compromised ability to work.” Likewise, we conclude in the present case, on the basis of the record before us, that the goal of fairness required the court to award to the plaintiff some form of alimony.

Here, the court found that at the time of trial the plaintiff was fifty-five years old, and the defendant was fifty-one. The parties had been married for approximately twenty years. The plaintiff was employed as a computer operator when the parties married, and he continued to be employed until May, 2007. Thereafter, the plaintiff collected unemployment benefits for the maximum period permitted. He attempted to find work through Manpower, but, despite his weekly telephone calls, he received no assignments and remained unemployed. The department of labor no longer listed computer operator as a job. The plaintiff also served on inactive reserve duty in the Connecticut Army National Guard. He has no health insurance. Further, as to the defendant, the court found that she was employed as a collections specialist, and, at the time of the dissolution, she was earning $1160 in gross weekly salary, netting approximately $889. She had no medical benefits and was considered a contract employee. The court found neither the plaintiffs nor the defendant’s financial affidavits credible. The court made no findings concerning the education level of either party, nor did it make any findings concerning the earning capacity of either party, nor was any testimony elicited to assist the court in making these findings. Although the court found that the plaintiff held more responsibility for the breakdown of the marriage than did the defendant, we conclude on the basis of the record before us, in combination with the specific findings of the trial court, as highlighted, that it was an abuse of discretion not to award some form of alimony to the plaintiff in this case.

On the date of the dissolution hearing, the plaintiff had little or no income, while the defendant had a net income of approximately $889 weekly. The plaintiff was ordered to assume and to pay a substantial portion of the marital debt, despite having little or no income to pay that debt, and the court did not make any findings regarding his prospects for employment or his earning capacity. Because the parties did not have substantial personal assets, it reasonably is foreseeable that if the plaintiff complied with the court’s orders, he quickly would become destitute, to the extent that he was not already destitute. See id.; Kovalsick v. Kovalsick, supra, 125 Conn. App. 275. Accordingly, under the facts of this case, we conclude that the trial court abused its discretion by failing to award some form of alimony to the plaintiff.

IV

The plaintiff also claims that the court abused its discretion in assigning to him 72 percent of the marital debt and awarding to him only the property then presently in his possession. He also argues that the court’s awarding him one half of the parties’ security deposit but not requiring the defendant immediately to pay him his half, was improper. It is a generally accepted principle that, “when an appellate court reverses a trial court judgment based on an improper alimony, property distribution, or child support award, the appellate court’s remand typically authorizes the trial court to reconsider all of the financial orders.” (Internal quotation marks omitted.) Id., 276; see also Mickey v. Mickey, 292 Conn. 597, 615-16, 974 A.2d 641 (2009). “Because the financial orders in an action for dissolution of marriage are of necessity interwoven and because the rendering of a judgment in an action for the dissolution of marriage is a carefully crafted mosaic”; (internal quotation marks omitted) Watrous v. Watrous, supra, 108 Conn. App. 819; each element of which may be dependent on the other, the plaintiffs remaining claims necessarily are affected by the court’s abuse of discretion in declining to award alimony to the plaintiff. Accordingly, we conclude that we need not consider on appeal the plaintiffs claims concerning the allocation of the debt or the property distribution, including the security deposit. See Pellow v. Pellow, supra, 113 Conn. App. 129-30 (ordering trial court to reconsider all financial orders on remand, but declining on appeal to review claims concerning child support after determining alimony award and property division were excessive).

The judgment is reversed with respect to the financial and property orders entered by the trial court at the time of the dissolution judgment, but specifically excluding any matters relating to any personal property that previously was discarded or otherwise disposed of by either party or any other person, and the matter is remanded for a new hearing pursuant to General Statutes § 46b-81 and § 46b-82 on all other financial and property matters. The judgment is affirmed in all other respects.

In this opinion WEST, J., concurred.

LAYINE, J.,

concurring. I agree with the result of the majority opinion, but I do not agree that the pro se plaintiff’s claim regarding judicial bias, never raised or ruled on in the trial court, is reviewable. “The court shall not be bound to consider a claim unless it was distinctly raised at the trial . . . .” Practice Book § 60-5; see also State v. Marcisz, 99 Conn. App. 31, 38, 913 A.2d 436 (no review of unpreserved claim), cert. denied, 281 Conn. 922, 918 A.2d 273 (2007). The plaintiff did not request extraordinary review of his claim under any of the exceptions to the preservation rule; i.e., Practice Book § 60-5 (plain error); State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989) (review of unpreserved constitutional claims). Moreover, as the majority points out, the plaintiff failed to provide a legal analysis of his claim of judicial prejudice. Our appellate courts repeatedly have stated that “[w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” (Internal quotation marks omitted.) Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003). In my opinion, each time an appellate court decides to reach the merits of an unpreserved or unanalyzed claim, a message is sent to litigants and the bar that is contrary to the rules of practice and case law and encourages litigants to flout the rules designed to ensure that the process is fair to all participants.

I understand that the court “has always been solicitous of the rights of pro se litigants and, like the trial court, will endeavor to see that such a litigant shall have the opportunity to have his case fully and fairly heard so far as such latitude is consistent with the just rights of any adverse party.” (Internal quotation marks omitted.) Shobeiri v. Richards, 104 Conn. App. 293, 296, 933 A.2d 728 (2007). “Even pro se litigants, however, must provide this court with citations to rules of law that support their arguments.” Emerick v. Kuhn, 52 Conn. App. 724, 756 n.22, 737 A.2d 456, cert. denied, 249 Conn. 929, 738 A.2d 653, cert. denied sub nom. Emerick v. United Technologies Corp., 528 U.S. 1005, 120 S. Ct. 500, 145 L. Ed. 2d 386 (1999). When an appellate court addresses the merits of an inadequately analyzed claim, it nonetheless must frame the issue, identify the relevant facts and law and craft a reasoned decision, an awkward process that conflicts with the court’s cardinal duty of dispassionately analyzing arguments presented by the litigants.

It is particularly troubling when a party raises a claim of judicial bias for the first time on appeal, never having filed a motion to recuse or disqualify in the trial court. I agree with the majority that a claim of judicial bias strikes at the core of judicial integrity. The significance of such allegations makes it essential that the trial court be given an opportunity to address the claims of a litigant who feels he or she is not being treated fairly and that opposing counsel, or a self-represented party, have an opportunity to develop the record and to respond. It often has been said that to raise a claim for the first time on appeal is to ambush the trial court. See, e.g., DuBaldo Electric, LLC v. Montagno Construction, Inc., 119 Conn. App. 423, 443, 988 A.2d 351 (2010) (“to review claims articulated for the first time on appeal and not raised before the trial court would be nothing more than trial by ambuscade of the trial judge” [internal quotation marks omitted]). This is particularly so relative to claims of judicial bias raised for the first time long after a verdict has been returned or a decision rendered. Such claims, not raised at trial but asserted on appeal, also put the opposing party at substantial disadvantage. How can an opposing party be expected to respond appropriately to allegations—many of which may be baseless—on a fragmentary record?

Disappointed litigants must not be encouraged to use an appeal as an opportunity to raise a claim that assaults the integrity of the trial court at its most fundamental level without having given the court, and the opposing party, an opportunity to respond. In the absence of an objection and an adequate record in the trial court, this court should not countenance such claims by reviewing them unless the record demonstrates flagrant and egregious bias on the part of the trial court so substantial that a reasonable person would conclude that the proceeding fundamentally was unfair. In our desire to ensure that every party has a fair trial before an unbiased judge, we must not create a situation that is unfair to opposing parties who have abided by the rules. On the basis of my review of the record in this appeal, I do not believe that the plaintiffs claim of judicial bias, never raised or ruled on in the trial court, warrants review.

For these reasons, I concur in the result of the majority opinion.

       The defendant did not file a brief in this court or otherwise participate in this appeal. Consequently, after giving the defendant notice and the opportunity to file her brief, we considered the case on the record, the plaintiffs brief and his oral argument only.

       Practice Book § 25-5 provides in relevant part: “(a) The following automatic orders shall apply to both parties, with service of the automatic orders to be made with service of process of a complaint for dissolution of marriage or civil union, legal separation, or annulment, or of an application for custody or visitation. An automatic order shall not apply if there is a prior, contradictory order of a judicial authority. The automatic orders shall be effective with regard to the plaintiff or the applicant upon the signing of the complaint or the application and with regard to the defendant or the respondent upon service and shall remain in place during the pendency of the action, unless terminated, modified, or amended by further order of a judicial authority upon motion of either of the parties:
      “(1) Neither party shall sell, transfer, encumber (except for the filing of a lis pendens), conceal, assign, remove, or in any way dispose of, without the consent of the other party in writing, or an order of a judicial authority, any property, individually or jointly held by the parties, except in the usual course of business or for customary and usual household expenses or for reasonable attorney’s fees in connection with this action. . . .”

       On appeal, the plaintiff argues that the items in the boxes “are believed to have been [mostly] the plaintiffs personal property ...”

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

       Although canon 3 (c) (1) was the applicable canon in effect in 2009, the Code of Judicial Conduct was rewritten in 2011. The corresponding section on judicial bias now appears as rule 2.11 to canon 2 of the Code of Judicial Conduct.

       When rendering judgment in a dissolution case, before making property distributions and financial orders, the court must consider the criteria set forth in General Statutes §§ 46b-81 and 46b-82. Pursuant to § 46b-81 (c): “In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”
      General Statutes § 46b-82 (a) provides: “At the time of entering the decree, the Superior Court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81. The order may direct that security be given therefor on such terms as the court may deem desirable, including an order pursuant to subsection (b) of this section or an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party. The court may order that a party obtain life insurance as such security unless such party proves, by a preponderance of the evidence, that such insurance is not available to such party, such party is unable to pay the cost of such insurance or such party is uninsurable. In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent’s securing employment.”

       I recognize that there are valid exceptions affording review in some cases. See, e.g., State v. Golding, supra, 213 Conn. 239-40.

       This is not to say that the rules of practice fail to provide the opposing party with a quiver of procedural arrows to challenge unpreserved claims raised for the first time on appeal. All too often, however, an opposing party fails to take advantage of the rules of practice, as in this case where the defendant failed to file an opposing brief.

       “Any claim of judicial bias is taken as an attack on the fairness of the judicial process. We take this opportunity to remind [litigants] once again that claims of judicial bias are serious matters that should not be raised for the mere purpose of seeking a reversal of a judgment. See Wendt v. Wendt, [59 Conn. App. 656, 693, 757 A.2d 1225, cert. denied, 255 Conn. 918, 763 A.2d 1044 (2000)]. See also Peatie v. Wal-Mart Stores, Inc., 112 Conn. App. 8, 26 n.10, 961 A.2d 1016 (2009); Evans v. Commissioner of Correction, 37 Conn. App. 672, 676 n.6, 657 A.2d 1115 (counsel cautioned against making claims of bias not intended to question court’s integrity), cert. denied, 234 Conn. 912, 660 A.2d 354 (1995).” Malave v. Ortiz, 114 Conn. App. 414, 434 n.18, 970 A.2d 743 (2009).


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    HARLAN DENNY v. CESARE TOMEI ET AL.
    (AC 31577)
    Bishop, Gruendel and Peters, Js.

      Argued April 14
    officially released June 21, 2011

      Bernard Pellegrino, for the appellant (plaintiff).

      Kenneth A. Votre, for the appellees (defendants).
   Opinion

PETERS, J.

“From early times, under the common law, highways have been established in this state by dedication and acceptance by the public.” Wamphassuc Point Property Owners Assn. v. Public Utilities Commission, 154 Conn. 674, 680, 228 A.2d 513 (1967). In this declaratory judgment action, an abutting landowner claims that he has the right to build a road on property that, in a 1961 recorded subdivision map, was dedicated for future highway use. The town has manifested its intent to accept the road if he builds it. Because the landowner’s property was never part of the subdivision, the trial court held that the landowner had no standing to pursue his claim. The landowner has appealed. We affirm the judgment of the trial court.

On September 26, 2008, in an action for a declaratory judgment filed pursuant to Practice Book § 17-54, the plaintiff, Harlan Denny, asked the court to affirm that he and the town of Orange (town) have a right to build a road on properties owned by the defendants, Cesare Tomei, Josephine Tomei, James Brennan and Susan Brennan, in accordance with a recorded subdivision map reserving a part of the defendants’ property “for future highway purposes.” The trial court granted the motion filed by James Brennan and Susan Brennan to dismiss the plaintiffs complaint for lack of standing. The plaintiff has appealed.

In its memorandum of decision, the court recited the undisputed facts that govern this appeal. The plaintiff and the defendants are the owners of contiguous residential properties that presently have separate access to public roads. The defendants’ properties include a strip of land that a subdivision map, recorded by David Grillo in 1961, described as “reserved for future highway purposes.” The plaintiffs property has never been part of this subdivision.

Although the defendants acquired title to the reserved strip of land by adverse possession in 1991, prior litigation has established that the recording of the Grillo map served as a dedication of the reserved strip of land to the town for highway purposes. The town has not formally accepted the reserved strip. In June, 2008, however, its zoning commission allegedly accepted the plaintiffs subdivision application that included a subdivision map showing a division of the plaintiffs property into two new lots. Utilizing the reserved strip of land that is the subject of the present litigation, the subdivision application proposes the construction of a road from the southern end of the plaintiffs property to the public road that borders the southern end of the defendants’ properties. Furthermore, the plaintiff alleges that, “[o]n June 18, 2008 . . . the [town’s] board of selectmen . . . voted to affirmatively express its intent to accept [the dedication] as a public highway upon its improvement by [the plaintiff] in conformity with the [town’s] road standards.”

The court granted the motion filed by James Brennan and Susan Brennan to dismiss the plaintiffs declaratory judgment action for lack of standing. The plaintiff concedes that he does not have statutory standing to bring this action. The only issue, therefore, is whether he has established that he is classically aggrieved.

“Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action .... Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved. . . . The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all the members of the community as a whole. Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the decision. . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected.” (Internal quotation marks omitted.) Gold v. Rowland, 296 Conn. 186, 207, 994 A.2d 106 (2010).

The plaintiff asserts that, as a landowner whose property abuts the reserved strip of land that has been dedicated “for future highway purposes,” he is classically aggrieved by the defendants’ threat to initiate legal action to block his ability to construct the road in accordance with the dedication. In his view, our common-law cases have established the rule of law that the recordation of a map dedicating property for future rights of passage creates an easement by implication in favor of those who were reasonably foreseeable beneficiaries of such rights. He further asserts that an abutting landowner who bought his property in reliance on the recorded map comes within the class of foreseeable beneficiaries.

At trial, and in this appeal, the plaintiffs argument in favor of standing relies on what he describes as the Whitton rule that our Supreme Court established in Lucy v. Oram, 114 Conn. 642, 159 A. 655 (1932), Whitton v. Clark, 112 Conn. 28, 151 A. 305 (1930), and Derby v. Alling, 40 Conn. 410 (1873). The trial court agreed with the plaintiff that each of these cases recognized that subsequent lot owners may have implied easements to enforce property rights that are documented in a recorded subdivision map.

The court further observed, however, that, in the cited cases, the so-called Whitton rule has been successfully invoked by only a limited class of beneficiaries. In each of the cases on which the plaintiff relied, “the lot owners acquired their lots from, or could trace their acquisition to, a common grantor that (1) made a map showing the newly created lots and dedicated paper road, and then (2) transferred those lots by deeds that referred to the map.” Because the plaintiff did not allege that his property was in Grillo’s chain of title, the court granted the motion to dismiss his complaint.

The plaintiffs appeal is governed by a well established standard of review* “[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute. . . . Because a determination regarding the trial court’s subject matter jurisdiction raises a question of law, our review is plenary.” (Internal quotation marks omitted.) McWeeny v. Hartford, 287 Conn. 56, 64, 946 A.2d 862 (2008).

In his brief to this court, the plaintiff does not challenge the propriety of the court’s determination that, because his property was not part of the original Grillo subdivision, he does not have standing under the Whit-ton rule as articulated in the cases that he cites. He maintains that he, nonetheless, has an easement by implication to construct a road on the defendants’ properties because, at the time when the subdivision was approved, it was reasonably anticipated that the land to the north of the subdivision, the land he now owns, was to benefit from the creation and dedication of the road. He represents that the town required Grillo to dedicate the reserved strip of land for future highway purposes for this very reason. Further, he asserts that he bought his property in reliance on the reservation in the Grillo map.

The defendants challenge both the factual predicate and the legal validity of the plaintiffs argument. They note the absence of evidence in the record supporting the plaintiffs factual allegations, which do not appear in his complaint. They emphasize that the plaintiffs own deed does not purport to grant him any rights of access to or from the Grillo subdivision. They ask us, therefore, to uphold the trial court’s construction and application of the Whitton rule and to affirm the court’s judgment.

The plaintiffs appeal comes to us in an unusual posture. He acquiesces in the trial court’s analysis of the case law that he cited at trial. He asks us to find new facts, including his reliance on the reservation in the map, and to make new law without having given the trial court the opportunity to do so. Our rules of practice are to the contrary. See Practice Book §§ 60-5 and 61-10.

To overcome these significant impediments to reversal of the court’s careful and reasoned rejection of the plaintiffs arguments at trial, he would have to present compelling authority that evidence of third party reliance on a recorded document is sufficient to establish an easement by implication. The plaintiff has not cited such a case and our own research indicates that the law is to the contrary.

In McBurney v. Cirillo, 276 Conn. 782, 889 A.2d 759 (2006), overruled in part on other grounds by Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 284-89, 914 A.2d 996 (2007), our Supreme Court revisited the role that a map plays in the creation of an easement by implication. It observed that “much of our case law setting out the circumstances under which a map creates an implied easement specifically has involved the consideration of streets and highways delineated on such [a map] . . . .” Id., 799. It identified two theories under which a map may imply an easement: “first, under an equitable estoppel theory, an implied easement exists in a lot owner when the owner reasonably anticipated the use of the streets disclosed on the map that would prove beneficial to him . . . and, second, a lot owner may acquire an implied easement by virtud of a map under an implied covenant theory, if the [anticipated] use served as an inducement to the purchase of the lot.” (Citation omitted; internal quotation marks omitted.) Id. Under either theory, the court instructed the fact finder to examine “(1) the intention of the parties, and (2) [whether] the easement is reasonably necessary for the use and normal enjoyment of the dominant estate.” (Internal quotation marks omitted.) Id., 800.

The judgment of the court in this case is consonant with the principles stated in McBumey. Concededly, on the record before us, “the intention of the parties” cannot be dispositive because the parties’ interests are irreconcilably inconsistent. McBumey suggests that, under such circumstances, a trier of fact reasonably may inquire into the intent of the grantor; id., 804; and that intent can reasonably be presumed to have been to provide a benefit to the owners of property in the subdivision and not to outsiders. More important, the plaintiff has not alleged that construction of a road over the defendants’ properties is reasonably necessary for the use and normal enjoyment of his own property.

We conclude, therefore, that our law of implied easements, both as stated in the cases that the parties presented to the trial court and in the more recent precedent of our Supreme Court, supports the reasoned opinion of the trial court that the plaintiff does not have standing to bring a declaratory judgment action under the circumstances of this case.

The judgment is affirmed.

In this opinion the other judges concurred.

       See E. Sostman & J. Anderson, “The Highway and the Right of Way: An Analysis of the Decisional Law in Connecticut Concerning Public, Private and Proposed Roads from Establishment to Abandonment,” 61 Conn. B.J. 299 (1987).

       The town is not a party to this action.

       The defendants have access to their properties by way of Cricket Lane, a public road that parallels the southern boundary of their properties. The plaintiff has access to his property, which abuts the northern boundary of the defendants’ properties, by way of Dogwood Road, which also is a public road.

       After the defendants acquired title to this strip of land by adverse possession, they unsuccessfully attempted to revoke the dedication. In earlier litigation between the parties or their predecessors in title, the trial court, Hodgson, J., held that revocation required the approval of the town zoning commission, which the defendants had not obtained. Bartocetti v. Denny, Superior Court, judicial district of New Haven, Docket No. CV-90-301390-S (May 28, 1992) (6 Conn. L. Rptr. 489).

       The defendants’ brief states that the propriety of this decision by the zoning commission is presently the subject of an independent appeal.

       In prior litigation between the parties or their predecessors in title, the court, Hodgson, J., held that the plaintiff does not have statutory standing under General Statutes § 13a-55 because the reserved strip of land has not been discontinued or abandoned. Bartocetti v. Denny, Superior Court, judicial district of New Haven, Docket No. CV-90-301390-S (May 28, 1992) (6 Conn. L. Rptr. 489). His status as an abutter to the defendants’ property does not give him statutory standing under General Statutes § 8-8 because he is not challenging the decision of a zoning board or commission.

       Section 2.11 (b) of 1 Restatement (Third), Property, Servitudes (2000), refers to easements by implication as servitudes by implication. Section 2.11 (b) provides: “The identity of the beneficiary of a servitude may be implied by the facts or circumstances of the transaction creating the servitude.” 1 Restatement (Third), supra, § 2.11 (b), p. 153.

       Section 2.14 of 1 Restatement (Third), Property, Servitudes (2000), titled “Servitudes Implied From General Plan,” provides in relevant part: “Unless the facts or circumstances indicate a contrary intent, conveyance of land pursuant to a general plan of development implies the creation of servitudes as follows: (1) Implied Benefits: Each lot included within the general plan is the implied beneficiary of all express and implied servitudes imposed to carry out the general plan. ...” (Emphasis added.)


author: DiPENTIMA, C. J.

text:
    STATE OF CONNECTICUT v. ROBERT BROWN
    (AC 31598)
    DiPentima, C. X, and Lavine and Sullivan, Js.

      Argued February 16
    officially released June 21, 2011

      Katherine C. Essington, special public defender, for the appellant (defendant).

      Margaret Gaffney Radionovas, senior assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Michael A. DeJoseph, assistant state’s attorney, for the appellee (state).
   Opinion

DiPENTIMA, C. J.

The defendant, Robert Brown, appeals from the judgment of conviction, rendered following his conditional plea of nolo contendere, pursuant to General Statutes § 54-94a, of possession of a narcotic substance with intent to sell in violation of General Statutes § 2 la-277 (a) and possession of a narcotic substance with intent to sell within 1500 feet of an elementary or secondary school in violation of General Statutes § 21a-278a (b). The dispositive issue in this appeal is whether the trial court improperly denied the defendant’s motion to suppress evidence because his girlfriend, Patricia Armstrong, did not voluntarily consent to a search of her apartment where the defendant’s drugs where found. We affirm the judgment of the trial court.

In denying the motion to suppress, the court found the following relevant facts. “On July 15, 2008, the narcotics division of the Bridgeport police department was conducting an investigation into narcotics trafficking. On that date, Lieutenant [Christopher Lamaine], [Officer Barbara] Gonzalez . . . and others were assigned to the area of Williston and Bunnell Streets. Based upon information received by [another officer], they were advised to converge on a tan Honda Accord at the comer of Williston and Bunnell. . . . Lamaine was the first to approach the vehicle. It had only a single occupant, Patricia Armstrong, who was seated in the driver’s seat. As he approached the vehicle . . . Lamaine saw . . . Armstrong stuff a sandwich baggie containing what . . . Lamaine was sure was narcotics down the front of her jeans. She was removed from the vehicle, handcuffed and placed under arrest. . . .

“Gonzalez, a female officer, arrived at the stop within moments. She was instructed by . . . Lamaine to search . . . Armstrong incident to her arrest and to retrieve the narcotics from inside her pants. . . . Gonzalez was able to see the edge of the sandwich baggie. She pulled it out and recovered five bags of what turned out to be heroin. . . . Armstrong was then placed in the back of . . . Gonzalez’ police vehicle. This was an unmarked Crown Victoria. The weather was warm, but the air conditioning in the car was on. . . . Lamaine got into the vehicle with . . . Armstrong and . . . Gonzalez. . . . Lamaine advised . . . Armstrong of her Miranda rights, and she agreed to speak with him.

“During the discussion that followed . . . Armstrong indicated that her boyfriend had given her the heroin to deliver, her boyfriend being the defendant, and that there was likely more heroin in the apartment, which she identified as 581 Connecticut Avenue, second floor. She then verbally gave . . . Lamaine permission to search the apartment. Thereafter . . . Gonzalez reviewed a preprinted consent to search form commonly used by the narcotics division. She read the form verbatim to . . . Armstrong. . . . Armstrong signed the consent to search. . . . Gonzalez witnessed the signing and thereafter gave the form to . . . Lamaine. During this time period . . . Armstrong is described as upset and concerned but not unreasonably so and on par with other people who have been arrested.” On the basis of these facts, the court determined that Armstrong voluntarily consented to a search of the apartment.

The police went to the address identified by Armstrong and entered the apartment. While securing the apartment, the police found the defendant in Armstrong’s bedroom. Lamaine told the defendant that Armstrong had been arrested “with heroin and had given consent to search the apartment. At this point, the defendant offered that the [heroin] was his [and] that he had sent [Armstrong] to deliver it. He was stopped [and] advised of his Miranda rights . . . .” Then, the defendant signed a consent to search form. Following the defendant’s directions, Lamaine found twenty-seven bags of heroin inside a bag of uncooked rice in a storage bin.

On the basis of these findings, the court denied the defendant’s motion to suppress. The court found that Armstrong’s consent was voluntary, and, therefore, that the warrantless search was not unreasonable. On May 5,2009, the defendant entered aplea of nolo contendere, conditioned on his right to appeal from the court’s denial of his motion to suppress. The court accepted the defendant’s plea and rendered judgment accordingly. The court sentenced him to a total effective term of fifteen years imprisonment, execution suspended after seven and one-half years, with five years of probation. This appeal followed.

As a preliminary matter, we address the defendant’s standing to challenge the validity of Armstrong’s consent to search. “The touchstone to determining whether a person has standing to contest an allegedly illegal search is whether that person has a reasonable expectation of privacy in the invaded place.” (Internal quotation marks omitted.) State v. Boyd, 295 Conn. 707, 718, 992 A.2d 1071 (2010), cert. denied, U.S. , 131 S. Ct. 1474, 179 L. Ed. 2d 314 (2011). At the suppression hearing, Armstrong testified that she lived at 581 Connecticut Avenue in Bridgeport with her sister-in law, Lisa Rivera, and at the time of the search the defendant would stay at her house three to four times a week with her permission. Rivera also testified that on the night prior to the search, the defendant slept in Armstrong’s bedroom and was there with permission to stay in the home. This testimony was uncontested by the state. The defendant’s “status as an overnight guest is alone enough to show that he had an expectation of privacy in the [host’s] home that society is prepared to recognize as reasonable.” Minnesota v. Olson, 495 U.S. 91, 96-97, 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990); see also State v. Brosnan, 221 Conn. 788, 809, 608 A.2d 49 (1992). Under facts less compelling than those in the present case, this court previously has determined that a defendant may claim the protections of the fourth amendment inside his host’s home. See State v. Carter, 22 Conn. App. 118, 122-23, 576 A.2d 572 (1990). We, therefore, conclude that the defendant has standing to challenge the constitutionality of the police search of Armstrong’s residence.

The defendant does not dispute that Armstrong, a resident of the apartment in which the officers found the drugs, had the authority to consent to the officers’ search of the apartment. Nor does the defendant claim that the trial court erroneously credited the testimony of the police officers and did not credit, to the extent that their testimony contradicted the police officers, the testimony of the defendant’s witnesses. Rather, the defendant claims that the totality of the circumstances under which Armstrong signed the consent to search form was coercive so that the court’s finding that Armstrong’s consent was voluntary was clearly erroneous. We disagree.

We first set forth our standard of review and the legal precepts that guide our analysis. “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 . . . .” (Internal quotation marks omitted.) State v. Jenkins, 298 Conn. 209, 222, 3 A.3d 806 (2010). “A warrantless search is not unreasonable under . . . the fourth amendment to the constitution of the United States ... if a person with authority to do so has freely consented to the search. . . . The state bears the burden of proving that the consent was free and voluntary and that the person who purported to consent had the authority to do so. . . . The state must affirmatively establish that the consent was voluntary; mere acquiescence to a claim of lawful authority is not enough to meet the state’s burden. . . . The question whether consent to a search has in fact been freely and voluntarily given, or was the product of coercion, express or implied, [as well as whether the individual providing consent possessed the requisite authority] is a question of fact to be determined from the totality of all the circumstances. ... As a question of fact, it is normally to be decided by the trial court upon the evidence before that court together with the reasonable inferences to be drawn from that evidence. . . . We may reverse [the trial court’s factual] findings on appeal only if they are clearly erroneous.” (Internal quotation marks omitted.) State v. Azukas, 278 Conn. 267, 275, 897 A.2d 554 (2006).

“[T]he state had the burden of proving the voluntariness of the consent to the search by a preponderance of the evidence.” State v. Jenkins, supra, 298 Conn. 249 n.32. “In determining whether a defendant’s will was overborne in a particular case, the [c]ourt has assessed the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation.” Id., 250-51. “[T]he test is fact specific, so that, ultimately, the determination of whether the consent was voluntary rests on a careful consideration of the totality of the relevant circumstances.” State v. Courchesne, 296 Conn. 622, 658, 998 A.2d 1 (2010).

The trial court found that Armstrong voluntarily had consented to the search of the apartment. The court found that after being arrested, Armstrong was placed in the back of Gonzalez’ police car. The weather was warm, but the air conditioning was on in the car. After being advised of her Miranda rights, Armstrong agreed to speak with Lamaine. When Lamaine was questioning Armstrong, Gonzalez was the only other person in the car. The court credited Gonzalez’ version of the events taking place in the car. Gonzalez testified that Armstrong did not appear to be confused or under the influence of any drugs at the time she gave her consent to search the apartment. Gonzalez also testified that neither she nor Lamaine threatened or induced Armstrong to consent to a search of the apartment, and that Armstrong appeared at the time to do so voluntarily. After Armstrong agreed verbally to Lamaine’s request for permission to search her apartment for drugs, Gonzalez read a standard consent to search form to Armstrong that included a statement that Armstrong had the right not to consent. Armstrong signed the consent form.

The defendant does not challenge these findings surrounding Armstrong’s signing the consent to search form. Rather, the defendant argues that the court failed to consider other factors that coerced Armstrong into giving consent. The defendant claims that Armstrong could not have voluntarily consented to the search because at the time that Lamaine was questioning Armstrong, she was handcuffed in the back of a police car, with several police officers at the scene, and she was asked to consent to the search only a few minutes after she was placed under arrest.

“[T]hat consent to search is given while a [person] is being detained does not render it involuntary per se, as ‘the fact of custody alone has never been enough in itself to demonstrate a coerced confession or consent to search.’ United States v. Watson, 423 U.S. 411, 424, 96 S. Ct. 820, 46 L. Ed. 2d 598 (1976) . . . .” (Citations omitted.) State v. Jenkins, supra, 298 Conn. 251-52; see also State v. Adams, 176 Conn. 138, 142-43, 406 A.2d 1 (1978) (whether suspect technically in custody not determinative of finding that he voluntarily consented). In United States v. Watson, supra, 413, shortly after being arrested, the defendant was read his Miranda rights, and the investigating officer asked for the defendant’s consent to search his car. The defendant replied: “ ‘Go ahead’ . . . .” Id. The United States Supreme Court concluded that in the absence of any allegations or proof of threat by the arresting officer, being taken into custody has never been by itself enough to create a coercive environment. Id., 424.

As stated previously, the court found that Armstrong’s consent was voluntary where she was arrested, handcuffed, and placed in the back of a police vehicle. The mere fact that Armstrong was under arrest at the time that she consented to a search of the apartment is not enough to create a coercive environment. As in Watson, the police read Armstrong her Miranda rights prior to questioning her or asking her for consent to search. Although Armstrong did testify that Lamaine threatened to have the department of children and families remove her grandchildren from the home, the court did not find Armstrong’s testimony credible and concluded that the police did not make any threats.

A person may voluntarily consent to a search even while handcuffed. United States v. Comstock, 531 F.3d 667, 677-78 (8th Cir.) (trial court not clearly erroneous in finding consent voluntary where defendant signed consent to search form after being handcuffed for two hours), cert. denied, 555 U.S. 1020, 129 S. Ct. 590, 172 L. Ed. 2d 445 (2008). While we recognize that being handcuffed can be a factor in determining if consent was voluntary; see, e.g., State v. Stephenson, 99 Conn. App. 591, 597-98, 915 A.2d 327, cert. denied, 282 Conn. 903, 919 A.2d 1037 (2007); this court previously has concluded that a defendant’s consent to a search of his car was voluntary where he was arrested, handcuffed and placed in the back of a police cruiser despite not having been read his Miranda rights. See State v. Winot, 95 Conn. App. 332, 336, 349, 897 A.2d 115 (2006), rev’d in part on other grounds, 294 Conn. 753, 988 A.2d 188 (2010).

The testimony of the witnesses, as credited by the trial court, supports the conclusion that Armstrong was subjected to far less coercive pressure than the defendants in Winot and Comstock, who were found to have consented voluntarily. The defendant in Winot was not read his Miranda rights and was asked orally by the police for permission to search his car after being arrested, handcuffed, and placed in the back of a police car. See id. Lamaine informed Armstrong of her Miranda rights prior to asking her to consent to a search of the apartment. Gonzalez also read the consent to search form to Armstrong, which informed Armstrong of her “constitutional right not to have a search made without a search warrant and [her] right to [r]efuse to consent to such a search . . . .” The defendant in Comstock was asked to sign a consent to search form after having been handcuffed for two hours, during which time the handcuffs were alleged to have caused him pain. State v. Comstock, supra, 531 F.3d 673, 677-78. Armstrong did not testify that the handcuffs hurt her, and Gonzalez testified that Armstrong was handcuffed for only five minutes before signing the consent to search form.

As to the defendant’s claim that the court did not properly consider the number of police officers present at the scene in determining if Armstrong’s consent was voluntary, we disagree. The exact number of officers at the scene is not clear from the record, but the court found that there were at least five officers at the scene of Armstrong’s arrest. The defendant cites the testimony of a witness credited by the trial court to conclude that there were at least eight police officers at the scene. Even assuming that eight officers were present at the scene, this does not weigh in favor of a finding that Armstrong’s consent was involuntary. See United States v. Jones, 523 F.3d 31, 38 (1st Cir.) (presence of “some ten to fifteen government agents” not inherently coercive), cert. denied, 555 U.S. 901, 129 S. Ct. 228, 172 L. Ed. 2d 174 (2008). In addition, we note that, after Armstrong was arrested and placed in the back of Gonzalez’ police car, only two police officers, Lamaine and Gonzalez, were present in the car when Armstrong consented to a search of the apartment.

The defendant also claims that the court erred in not considering the short period of time that had passed between Armstrong’s arrest and her consent to a search of the apartment. Our Supreme Court has held that a suspect voluntarily consented to accompany the police to the police station for questioning even though the police sought his consent immediately after he was seized and did not inform him of his right to refuse. See State v. Courchesne, supra, 296 Conn. 647, 658-60. Armstrong was described as being upset at the time she signed the consent form, but not unreasonably so and no more so than any other person who had just been arrested. She was read her Miranda rights before being asked to give permission to search the apartment. After Armstrong gave her consent orally, Gonzalez read the consent to search form to Armstrong and informed her that she did not have to consent to a search of the apartment. This factor therefore does not weigh in favor of the defendant’s argument that Armstrong did not consent voluntarily.

In sum, the totality of the circumstances indicate that the court’s findings that Armstrong’s will was not overborne by the police and that Armstrong voluntarily consented to a search of the apartment were not clearly erroneous. The court credited the testimony of Gonzalez, and the defendant does not challenge this determination. Armstrong was not threatened or coerced and, while upset that she was under arrest, was informed of her Miranda rights and her right not to consent to the search. Accordingly, we conclude that the trial court properly denied the defendant’s motion to suppress the evidence seized from the apartment.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant and the state agree that if we determine that the court’s finding was not clearly erroneous that Patricia Armstrong voluntarily consented to a search of her apartment, then we need not reach the defendant’s other claims that he and another individual did not consent voluntarily.

       See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       At Lamaine’s request, the defendant signed the same consent form as Armstrong. Lamaine noted the time that the defendant signed the consent form to make clear that the defendant did not sign it at the same time as Armstrong, but Lamaine did not sign the consent form as a witness to the defendant’s signature.

       We have raised the issue of standing sua sponte.


author: LAVINE, J.

text:
    NEW BREED LOGISTICS, INC. v. CT INDY NH TT, LLC, ET AL.
    (AC 31178)
    DiPentima, C. J., and Lavine and Alvord, Js.

      Submitted on briefs March 11
    officially released June 21, 2011

      Kenneth W. Ritt filed a brief for the appellant (plaintiff).

      Christopher J. Major filed a brief for the appellee (named defendant).
   Opinion

LAVINE, J.

The plaintiff, New Breed Logistics, Inc., appeals from the judgment of the trial court, A. Robinson, J., claiming that the court improperly dissolved a temporary injunction issued against the defendant CT INDY NH TT, LLC, by failing to consider the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. We affirm the judgment of the trial court.

The following facts, as alleged in the August, 2008, amended verified complaint (complaint) provide the context of this appeal. The plaintiff alleges that it is a third-party logistics service provider. On or about July 7, 2006, the plaintiff entered into a commercial lease (lease) with PREI North Haven Developers, LLC (the defendant’s predecessor in interest), to rent a portion of the premises located at 300 Montowese Avenue in North Haven (property), on which three buildings are situated: the grocery building, the produce building and the transportation building. Initially, the plaintiff leased a portion of the grocery building. The plaintiff alleged that, in accord with its expectation that its business would grow and it eventually would use all of the buildings on the property, it negotiated lease provisions granting it the option to lease the entire grocery building by a date certain. The plaintiff also secured the option to lease the produce building provided that it exercised the option by a date certain. In addition, the lease gave the plaintiff the right of first offer to lease the entire grocery building and/or the produce building, if the plaintiff had not exercised its options.

The plaintiff further alleges that it exercised its option to lease the entire grocery building and thereafter a first amendment was added to the lease. The amendment granted the plaintiff the right to exercise options to lease the produce building and the transportation building and the right of first offer if it did not exercise its option on the transportation building. Subsequently, the plaintiff and the defendant entered into a second amendment to the lease. The plaintiff alleges that, during the negotiation of the second amendment to the lease, the defendant sought to alter the plaintiffs right of first offer with respect to the produce and transportation buildings. Because it expected to expand and eventually use the entire property, the plaintiff refused to relinquish its right of first offer with respect to either of the buildings.

The plaintiff also alleges, upon information and belief, that during 2008, the defendant entered into an agreement to lease the produce building to Bozzuto’s, Inc. (Bozzuto’s). By letter dated July 17, 2008, the plaintiff reminded the defendant that it had a right of first offer on the produce building and that the defendant had not complied with its obligations under the lease. On July 18, 2008, the defendant offered to lease the transportation building to the plaintiff, and on July 23, 2008, the plaintiff exercised its right to lease the entire transportation building. On July 24, 2008, the defendant sent the plaintiff a proposed third amendment to the lease, indicating that another party was interested in the transportation building. The defendant did not offer the plaintiff all of the parking spaces or exclusive use of the fueling system and truck wash associated with the transportation building. On July 28, 2008, the plaintiff executed the proposed third amendment to the lease. Upon information and belief, the plaintiff alleges that on July 30, 2008, the defendant and Bozzuto’s executed a lease for the produce building and the right to access the utility room in the transportation building notwithstanding the fact that the defendant had leased the transportation building to the plaintiff. The complaint alleges breach of contract, breach of the implied covenant of good faith and fair dealing and violation of CUTPA against the defendant and seeks temporary and permanent injunctions, a declaratory judgment and specific performance against the defendant and Bozzuto’s.

At some time prior to the events that gave rise to this action, when the property was still owned by the defendant’s predecessor in interest, the plaintiff erected a fence near the grocery building. Although the defendant previously had not objected to the fence, in August, 2008, after the plaintiff had commenced this action, the defendant sent the plaintiff a notice of default for failing to remove the fence as required under section nine of the first amendment to the lease. The plaintiff removed the fence, but later claimed that removing the fence had an adverse effect on security. The plaintiff hired security guards, which it claims did not satisfy its security concerns. The plaintiff designed a new fence to be erected on the property and on October 9, 2008, asked the defendant for permission to install it. On October 24, 2008, the defendant responded by e-mail that based on a review of the lease, the plaintiff did not have a right to construct a fence and denied the request. The plaintiff claims that the defendant’s refusal to grant permission to erect the fence is commercially unreasonable and unless permission was forthcoming, the plaintiff would avail itself of all its available remedies.

On or about December 9, 2008, the plaintiff began to erect the new fence, claiming that the new fence was critical to separate Bozzuto’s space from the plaintiffs and to provide a perimeter around the grocery building. The defendant immediately sent the plaintiff a notice of default. On December 11, 2008, the plaintiff filed an application for an ex parte temporary injunction order, order to appear and show cause and temporary injunction (application). The application was presented to the court, Cosgrove, J., which ordered the parties to appear before it on December 17, 2008. After conferring with the parties, the court set the matter down for an evidentiary hearing on January 8, 2009, and entered a temporary injunction without a hearing and ordered the plaintiff to post a bond in the amount of $25,000. Judge Cosgrove found, in part, that “immediate and irreparable injury will result to [the] [p]laintiff prior to a hearing unless the requested injunctive relief is granted . . . .”

Thereafter, the parties appeared before Judge Robinson on January 8 and March 30,2009. On April 1,2009, the defendant filed a motion to dissolve the temporary injunction and for costs and attorney’s fees. Judge Robinson issued a memorandum of decision on May 27, 2009, dissolving the temporary injunction. The court noted the complexity of the underlying litigation but concluded that the issues related to the temporary injunction were relatively simple. The court also found that notwithstanding the plaintiffs argument that a CUTPA standard applies, “it is clear that the initial [o]rder for injunctive relief issued on the basis of a claim of irreparable harm. Had the plaintiff desired for the court to apply a different standard, it should have alerted the court and the parties to this in [its] initial filing. Instead, in the December, 2008 request for injunctive relief, the plaintiff asked for a finding of irreparable harm; and a finding that there was good cause for the issuance of the [o]rder. The hearing before this court further establishes that the CUTPA claim, while existing as a claim for relief in the instant case, is not the governing legal cause of action relating to the fence, its erection or its removal.”

The court also found that the plaintiff failed to establish that it will suffer irreparable harm if it is required to remove the fence or that it likely will prevail on the merits of its claim that it has a right to erect a fence. The court acknowledged that the timing of the defendant’s request that the plaintiff remove the fence raises questions about its motive, but stated that an improper motive alone is insufficient to establish bad faith or to meet the plaintiffs burden of proof. Ultimately the court concluded that the plaintiff has remedies at law and in equity and that they are sufficient to compensate the plaintiff for losses illegally or improperly caused by the defendant. The court, therefore, dissolved the temporary injunction.

On appeal the plaintiff claims that the court improperly dissolved the temporary injunction by (1) failing to apply the presumption of irreparable harm flowing from a CUTPA violation and (2) finding that the plaintiff was not likely to succeed on the merits or that the equities tipped in its favor. We disagree with the plaintiffs claims.

The following standard of review applies to the review of a trial court’s ruling on an injunction. “The issuance of an injunction and the scope and quantum of injunctive relief rests in the sound discretion of the trier.” (Internal quotation marks omitted.) Tomasso Bros., Inc. v. October Twenty-Four, Inc., 230 Conn. 641, 648, 646 A.2d 133 (1994). “How a court balances the equities is discretionary but if, in balancing those equities, a trial court draws conclusions of law, our review is plenary.” State v. Blake, 108 Conn. App. 336, 356, 947 A.2d 998 (Dupont, J., dissenting in part), aff'd, 289 Conn. 586, 958 A.2d 1236 (2008). “A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law. ... A prayer for injunctive relief is addressed to the sound discretion of the court and the court’s ruling can be reviewed only for the purpose of determining whether the decision was based on an erroneous statement of law or an abuse of discretion.” (Internal quotation marks omitted.) Tighe v. Berlin, 259 Conn. 83, 87, 788 A.2d 40 (2002).

The plaintiff claims that in dissolving the temporary injunction, the court failed to consider CUTPA. Although the plaintiff alleged a violation of CUTPA in its complaint, a CUTPA violation was not the basis of its application for a temporary restraining order or the basis on which Judge Cosgrove ordered the temporary injunction. The plaintiffs claim, therefore, fails.

In its December 11, 2008 application, the plaintiff alleged in part that it was “seeking an injunction to prevent irreparable harm and to maintain the status quo by enjoining [the defendant] from using self-help remedies and from carrying out its threat to remove ... a fence used by [the plaintiff] to secure sensitive and confidential government property stored in the grocery building. The fence sought to be removed by [the defendant] does not interfere with the use of the Premises and neither [the defendant] nor Bozzuto’s . . . will be harmed if [the defendant] is enjoined from removing a fence.” The plaintiff also alleged: “The issuance of temporary injunctive relief is necessary to prevent immediate and irreparable harm to [the plaintiff] for which there is no adequate remedy at law. Unless and until [the defendant is] restrained by order of this court, [the defendant] will remove the fence, jeopardize the security of highly-sensitive and valuable government property, unreasonably interfere with [the plaintiffs] use of the [property and potentially attempt to exercise other remedies it claims are available to it.

“[The plaintiff] is likely to succeed on the merits of its claims because [the defendant] has breached the . . . lease, has breached its duty of good faith and fair dealing, and has committed unfair acts designed to deprive [the plaintiff] of rights and the right to use and enjoy the Premises. . . . The balance of the hardships [tip] decidedly in favor of [the plaintiff] in that the fence will not cause any harm to [the defendant] whereas it will cause significant harm to [the plaintiffs] business and it would jeopardize [the plaintiffs] relationship with customers. ... A temporary injunction order is therefore necessary to maintain the status quo. . . . Based on the immediate threat, as set forth . . . [the plaintiff] is entitled to injunctive relief from this court pursuant to General Statutes § 52-471.”

In granting the temporary injunction, Judge Cosgrove found that “it appears to the undersigned that immediate irreparable injury will result to [the] [p]laintiff prior to a hearing unless the requested injunctive relief is granted . . . .’’He therefore ordered that the defendant is “temporarily enjoined and restrained from removing the fence installed by [the plaintiff] near the building known as the grocery building which is necessary to safeguard the security of sensitive and confidential government property; and ... is temporarily enjoined and restrained from exercising any other remedies available at law, in equity or under Section 17 of the lease between [the parties], based on [the plaintiffs] installation of the fence until such time as the rights of the parties are determined . . . .” Following a hearing before Judge Robinson, the defendant filed a motion to dissolve the temporary injunction claiming that there is no legal or factual basis for such relief.

“[P]arties are bound by their pleadings.” Edelman v. Page, 123 Conn. App. 233, 243, 1 A.3d 1188, cert. denied, 299 Conn. 908, 10 A.3d 525 (2010). “Construction of pleadings is a question of law. Our review of a trial court’s interpretation of the pleadings therefore is plenary.” Kovacs Construction Corp. v. Water Pollution & Control Authority, 120 Conn. App. 646, 659, 992 A.2d 1157, cert. denied, 297 Conn. 912, 995 A.2d 639 (2010).

In dissolving the temporary injunction, Judge Robinson found that under the lease, the defendant had a right to demand that the plaintiff remove the fence, and the plaintiff does not contest that fact. The court distinguished the claims the plaintiff alleged in its complaint and the claims alleged in its application, and concluded that the controlling issues were whether the plaintiff had established that it will suffer irreparable harm if it is required to remove the partially installed fence, whether the plaintiff had established that it will likely prevail in establishing its right to install the fence over the defendant’s objection and whether the plaintiff has any viable remedies at law, should it so prevail. The court found that the plaintiff will not suffer irreparable harm if it must remove the fence, as the fence is not the only way that the plaintiff can secure its leasehold. The plaintiff also failed to establish that it likely will prevail on the merits of its claim that it has a right to erect a fence. Finally, the court found that the plaintiff has remedies at law and in equity to establish its claims against the defendant.

The plaintiffs primary claim on appeal is that the court failed to apply CUTPA in deciding whether to dissolve the temporary injunction. In its application, the plaintiff claimed that the defendant should be enjoined from removing the fence so that it would not suffer irreparable harm and that was the basis of Judge Cos-grove’s order. Although the application recites claims alleged in the complaint including a violation of CUTPA, that violation was not alleged as a ground for enjoining the defendant from removing the fence. On the basis of our review of the record, we agree with Judge Robinson that the plaintiff failed to carry its burden of demonstrating irreparable harm if the defendant was not enjoined from removing the fence. The plaintiff has not identified any evidence of harm to its property or that of its customers due to the absence of a fence. Because the plaintiff has failed to demonstrate harm, we cannot conclude that the equities tip in its favor. See Berin v. Olson, 183 Conn. 337, 343, 439 A.2d 357 (1981). We also agree with the court that the plaintiff has adequate remedies at law. The plaintiff concedes that the right to construct a fence on the leasehold is controlled by the lease, which is a question of law. See Rogers v. Great Atlantic & Pacific Tea Co., 148 Conn. 104, 106, 167 A.2d 712 (1961).

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant Bozzuto’s, Inc., is not aparfy to this appeal. In this opinion, we refer to CT INDY NH TT, LLC, as the defendant.

       After the plaintiff appealed, the defendant filed a motion to dismiss claiming that the appeal was not taken from a final judgment. This court denied the motion to dismiss. The parties, on their own initiative, addressed the jurisdictional question again in their briefs, but presented no new analysis. We therefore decline to revisit the issue. See, e.g., Falkenstein v. Falkenstein, 84 Conn. App. 495, 497 n.1, 854 A.2d 749, cert. denied, 271 Conn. 928, 859 A.2d 581 (2004).

       The plaintiff sent Bozzuto’s a copy of the letter thereby putting it on notice of its right of first offer.

       Section nine of the first amendment to the lease states in relevant part: “Fence. . . . Tenant shall be permitted to install a fence around the area shown on Exhibit ‘B,’ which Tenant hereby agrees to install in two phases as noted on Exhibit ‘B.’ Tenant shall be responsible for maintaining the fence at its sole cost and expense. If Tenant fails to exercise the Produce Expansion Option in accordance with the terms of Section 34 of the Lease (or, in the event that Tenant validly exercises the Produce Expansion Option, upon the expiration or sooner termination of the Lease), unless otherwise directed by Landlord, Tenant, at its sole cost and expense, shall remove the fence within (5) days of the Produce Exercise Deadline . . . .”

       The plaintiffs business requires it to store aerospace materials for Sikorsky Aircraft Corporation and Pratt and Whitney. The plaintiff stores approximately $750 million worth of government-furnished equipment, including high-value reusable containers outside the buildings it leases. The containers are worth hundreds of thousands of dollars, and are, the plaintiff claims, critical to its operation. The lease permits the plaintiff to store materials outside of buildings.

       The court ordered that a hearing be scheduled to address the issue of attorney’s fees and costs.

       In support of this aspect of its claim, the plaintiff contends that “[wjhere ... a plaintiff shows that it is likely to succeed on the merits of a CUTPA claim, it need not show irreparable harm.” In support of its contention, the plaintiff cites Dept. of Transportation v. Pacitti, 43 Conn. App. 52, 58, 682 A.2d 136, cert. denied, 239 Conn. 937, 684 A.2d 707 (1996). “[T]he enactment of the statute by implication assumes that no adequate alternative remedy exists and that the injury was irreparable, that is, the legislation was needed or else it would not have been enacted.” (Internal quotation marks omitted.) Id., citing Conservation Commission v. Price, 193 Conn. 414, 429, 479 A.2d 187 (1984). The plaintiffs position is a good example of citing a rule but failing to trace its origins or the factual circumstances in which it applies. The statute at issue in Dept. of Transportation is General Statutes § 14-314 (failure to comply with traffic regulation) and the statute in Conservation Commission is General Statutes § 22a-44 (violation of wetlands and watercourses regulations). Both are distinguishable from CUTPA. The statutes in those two cases permit a court to grant an injunction at the request of an agency or its authorized official to enforce compliance with duly enacted legislation or regulations. The no-irreparable harm rule has its origins, however, in Johnson v. Murzyn, 1 Conn. App. 176, 469 A.2d 1227, cert. denied, 192 Conn. 802, 471 A.2d 244 (1984).
      In Johnson, this court determined that a zoning enforcement officer seeking to enjoin, under General Statutes § 8-12, a violation of the town’s zoning regulations did not have to allege and prove irreparable harm and the lack of an adequate legal remedy. Id., 177. Section 8-12 “was enacted to provide local zoning enforcement officers with a means of enforcing their zoning regulations. ... It is true that the issuance of an injunction is the exercise of an extraordinary power which rests in the sound discretion of the trial court and that ordinarily the party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate legal remedy. ... An injunction sought pursuant to a statute by the public official charged with the responsibility of enforcing the law, however, is an exceptional case which stands on a different footing.” (Citation omitted.) Id., 179. Our Supreme Court adopted the rule in Conservation Commission v. Price, supra, 193 Conn. 429.
      “[T]he legislature expressly provided in the [Inland Wetlands and Watercourses Act (act)] that the [SJuperior [CJourt, in an action brought by the commissioner, municipality, district or any person, shall have jurisdiction to restrain a continuing violation of said sections, to issue orders directing that the violation be corrected or removed and to impose fines pursuant to this section. . . .
      “It is the court’s duty to carry out the intention of the legislature as expressed in the statute it has enacted and to make the remedy it has provided an effective and efficient means of dealing with violations of the act and regulations properly promulgated under its authority. . . . We point out, however, that [t]he grant of jurisdiction to ensure compliance with a statute hardly suggests an absolute duty to do so under any and all circumstances, and a [trial judge] ... is not mechanically obligated to grant an ipjunction for every violation of law. . . . Put another way, we do not view the statutory grant of jurisdiction as destroying the discretion of a trial court in every case under this act.” (Citations omitted; internal quotation marks omitted.) Id., 429-30.

       General Statutes § 52-471, an enabling statute, provides in relevant part: “(a) Any judge of any court of equitable jurisdiction may, on motion, grant and enforce a writ of injunction, according to the course of proceedings in equity . . . .”

       Pursuant to our construction of the complaint and of the application, the wrongdoing alleged in the complaint is the defendant’s failure to adhere to the right of first offer in the lease and the wrongdoing alleged in the application is the defendant’s threatening to default the plaintiff for constructing a fence that is forbidden by the lease. In its complaint, the plaintiff alleges that the defendant’s failure to abide by the right of first offer is a deceptive trade practice under CUTPA. Whether the defendant’s alleged breach of the lease is a CUTPA violation is not relevant to whether the plaintiff will suffer an irreparable loss if it cannot construct a fence for security reasons. Those two issues are separate and distinct.