author: PER CURIAM.

text:
    GREGORY J. CORREA v. COMMISSIONER OF CORRECTION
    (AC 27439)
    Bishop, Rogers and McDonald, Js.
    Argued February 20
    officially released June 5, 2007

      H. Owen Chace, special public defender, for the appellant (petitioner).

      Melissa Streeto Brechlin, assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Kelly A. Masi, assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Gregory J. Correa, appeals from the denial of his petition for a writ of habeas corpus, in which he claimed that he was denied his right to effective assistance of counsel. We affirm the judgment of the habeas court.

The petitioner was charged with burglary in the third degree in violation of General Statutes § 53a-103 (a). Through his attorney, only days before the trial commenced, he filed a motion to suppress evidence of the victim’s gold cufflinks and Tiffany bag. The court denied the motion to suppress and the petitioner’s request for an evidentiary hearing on the motion because the motion was not timely, and the petitioner was convicted. The conviction was affirmed on appeal where one issue was whether the court erred by denying a hearing on the motion to suppress. See State v. Correa, 57 Conn. App. 98, 105-106, 748 A.2d 307, cert. denied, 253 Conn. 908, 753 A.2d 941 (2000).

The habeas court denied the petition, concluding that the petitioner failed to demonstrate that trial counsel’s performance in filing an untimely motion to suppress had caused him to suffer any prejudice. The court then certified the issue for this appeal.

“Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Grant v. Commissioner of Correction, 86 Conn. App. 392, 397, 861 A.2d 1191 (2004), cert. denied, 273 Conn. 903, 868 A.2d 744 (2005).

“In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. First, the [petitioner] must show that counsel’s performance was deficient. . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversarial process that renders the result unreliable.” (Internal quotation marks omitted.) Santiago v. Commissioner of Correction, 90 Conn. App. 420, 424-25, 876 A.2d 1277, cert. denied, 275 Conn. 930, 883 A.2d 1246 (2005), cert. denied sub nom. Santiago v. Lantz, 547 U.S. 1007, 126 S. Ct. 1472, 164 L. Ed. 2d 254 (2006). The habeas court, in this case, disposed of the petitioner’s claim under the second prong. “To satisfy the prejudice prong [of the Strickland analysis], a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied sub nom. Ledbetter v. Lantz, 546 U.S. 1187, 126 S. Ct. 1368, 164 L. Ed. 2d 77 (2006). Thus, in this case, the petitioner must prove that if counsel had filed a timely motion to suppress, there would have been a reasonable probability that the motion would have been granted.

The habeas court heard evidence, which may be summarized as follows. On January 7, 1997, the home of Andrea Martin in Darien was burglarized, and jewelry was taken. A witness had seen an unfamiliar red car parked in the vicinity of the Martin home at the time of the burglary and recorded the license plate number. He gave this number to the police, who had come to Martin’s home. Another witness also described to the police a man wearing a tan jacket and blue jeans in Martin’s driveway that day.

The next day officers went to the address of the red vehicle’s registered owner, Sharon Whitley of New Haven, and saw the vehicle there. After entering Whitley’s apartment, they met the petitioner, who looked like the man seen in Martin’s driveway. The petitioner admitted using the vehicle the day before and gave no reason to be in Darien that day. The officers then telephoned their lieutenant in Darien and secured the premises while a search warrant was prepared. When the petitioner later attempted to leave the apartment with laundry for cleaning, the officers instructed him not to remove anything from the premises. That laundry contained a pair of blue jeans, which matched the clothing of the man seen in Martin’s driveway. When the lieutenant arrived with the search warrant, the officers searched the jeans. In the pocket they found a Tiffany bag containing a pair of gold cufflinks and a small diamond ring. The search warrant authorized the seizure of a small diamond ring, and the petitioner’s actions, attempting to leave with the jeans while the officers awaited the search warrant, led them to seize the Tiffany bag and the gold cufflinks, which were not listed in the search warrant. Martin later identified the cufflinks as her husband’s and recognized the Tiffany bag as being like one taken in the burglary.

The habeas court found that the petitioner, a suspect in the burglary, was found with Whitley in an apartment shortly after the burglary. While in the apartment, he attempted to leave with some clothing while the police were obtaining a search warrant. He was told not to remove anything. The warrant issued allowed the police to search for stolen jewelry, and, in doing so, they recovered gold cufflinks and a Tiffany bag in the pocket of the petitioner’s pants, which he had attempted to remove. These items were admitted into evidence against the petitioner at his trial.

We conclude that the petitioner’s argument that the cufflinks and Tiffany bag were unlawfully seized because they were outside the scope of the warrant would have failed because the items were in plain view. Our Supreme Court has held that the plain view doctrine “makes permissible, with certain limitations, the seizure of items found by the police while executing a warrant naming other objects.” State v. Onofrio, 179 Conn. 23, 39, 425 A.2d 560 (1979). “The warrantless seizure of contraband that is in plain view is reasonable under the fourth amendment if two requirements are met: (1) the initial intrusion that enabled the police to view the items seized must have been lawful; and (2) the police must have had probable cause to believe that these items were contraband or stolen goods.” (Internal quotation marks omitted.) State v. Brown, 279 Conn. 493, 520, 903 A.2d 169 (2006). To satisfy this exception, at the time of discovery of the evidence, it must be immediately apparent that it is contraband or stolen goods. See id. There must be probable cause to associate the property in plain view with criminal activity without further investigation. Id. “The required inquiry is whether the incriminatory nature of the items was immediately apparent so as to establish that the officers had reason to believe that the items were related to the crime that formed the basis of the warrant.” State v. Gagnon, 18 Conn. App. 694, 711, 561 A.2d 129, cert. denied, 213 Conn. 805, 567 A.2d 835 (1989); see also State v. Onofrio, supra, 41.

In this case, the search warrant put the police in a position to view lawfully the items seized. By the authorization in that warrant, the police were lawfully entitled to search the petitioner’s residence for small items of jewelry. They discovered the cufflinks and the Tiffany bag pursuant to that lawful search in a location that was within the scope of the warrant, in the pocket of a pair of jeans found in the petitioner’s premises and seen in his possession.

Once discovered, the police had probable cause to believe that these items were stolen even though they were not listed on the warrant. They were located in the pocket of a pair of jeans that the petitioner had attempted to remove from Whitley’s apartment before the police could begin their search. The items were similar to the jewelry listed in the warrant and were found with a diamond ring that appeared to match an item to be seized under the warrant. On the basis of these facts, the reasonable likelihood that these were stolen goods was also immediately apparent. Although the cufflinks and Tiffany bag were not contraband, as are narcotics; see State v. Eady, 249 Conn. 431, 441-42, 733 A.2d 112, cert. denied, 528 U.S. 1030, 120 S. Ct. 551, 145 L. Ed. 2d 428 (1999); due to the circumstances in which they were found, no further investigation was necessary to conclude that they were reasonably related to the burglary, which was near the location at which Whitley’s car was seen and about which the police inquired of the petitioner. Our Supreme Court in Onofrio held that a handgun holster not listed in the search warrant was properly seized because police had probable cause to believe it was reasonably related to the shooting that was the basis for the issuance of the warrant for a handgun. State v. Onofrio, supra, 179 Conn. 27. In the circumstances of the present case, the police had probable cause to believe, without further investigation, that the lawfully discovered cufflinks and Tiffany bag were stolen property on the basis of the petitioner’s attempt to remove them and their similarity to the stolen items that were objects to be seized under the warrant.

We find that the motion to suppress would have been properly denied and the evidence properly admitted. The petitioner, therefore, has failed to demonstrate that there is a reasonable probability that, but for counsel’s performance, the result of his trial would have been different.

The judgment is affirmed.

       “A court evaluating an ineffective assistance claim need not address both components of the Strickland test if the [claimant] makes an insufficient showing on one.” (Internal quotation marks omitted.) Ledbetter v. Commissioner of Correction, 275 Conn. 451, 464, 880 A.2d 160 (2005), cert. denied sub nom. Ledbetter v. Lantz, 546 U.S. 1187, 126 S. Ct. 1368, 164 L. Ed. 2d 77 (2006). Because we find that the petitioner has not shown that trial counsel’s performance prejudiced the defense, we will not address the first prong of the Strickland test.

       We take judicial notice that Tiffany & Co. is the name of a very well-known jewelry store.

       “Probable cause, broadly defined, comprises such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred. . . . The probable cause determination is, simply, an analysis of probabilities.” (Internal quotation marks omitted.) State v. Eady, 249 Conn. 431, 440, 733 A.2d 112, cert. denied, 528 U.S. 1030, 120 S. Ct. 551, 145 L. Ed. 2d 428 (1999).

       It was later discovered that the diamond ring was not, in fact, the ring stolen from Martin’s residence. At the time of the search, however, it was reasonable for the police to believe that the ring was the one described in the warrant.


source: Caselaw Access Project

author: LAVINE, J.

license: Public Domain

text:
    MICHAEL TRACY v. NEW MILFORD PUBLIC SCHOOLS ET AL.
    (AC 27308)
    Flynn, C. J., and Harper and Lavine, Js.

      Argued March 19
    officially released June 5, 2007

      David V. DeRosa, for the appellant (plaintiff).

      Mark J. Sommaruga, for the appellees (defendants).
   Opinion

LAVINE, J.

The Connecticut Fair Employment Practices Act (act), General Statutes § 46a-51 et seq., provides a statutoiy remedy for an employee who claims to have been discharged on the basis of a discriminatory employment practice. See General Statutes § 46a-82. A plaintiff who brings an action in the trial court under General Statutes § 46a-100 must allege compliance with the statutory remedy sufficiently to withstand a motion to strike.

In this case, the plaintiff, Michael Tracy, appeals from the judgment rendered by the trial court subsequent to its granting a motion to strike all three counts of the complaint filed by the defendants, New Milford public schools (school system), Raymond E. Avery, superintendent, and John Calhoun, director of environmental services. On appeal, the plaintiff claims that the court improperly granted the motion to strike as to (1) count one alleging discriminatory discharge from employment, (2) count two alleging intentional infliction of emotional distress and (3) count three alleging negligent infliction of emotional distress. We affirm the judgment of the trial court.

The plaintiff commenced the action against the defendants by writ of summons and complaint served on April 24,2003. The plaintiff pleaded the following allegations. In count one, the plaintiff alleged that he had been employed by the school system as a custodian from September 1, 1987, until his employment was terminated on May 7, 2001, in violation of General Statutes § 46a-60 (a) (4). He further alleged that Calhoun conspired with Avery to harass him by carrying out a pattern of conduct, including the denial of a position, initiating disciplinary actions without proper investigation, defamation of character and intimidation and that their conduct was wilful, wanton and malicious. In count two, the plaintiff alleged that the defendants’ conduct constituted intentional infliction of emotional distress. In count three, the plaintiff alleged that the defendants’ conduct constituted negligent infliction of emotional distress. The plaintiff sought compensatory damages, punitive damages and reasonable attorney’s fees. On June 26, 2003, the defendants filed a motion to strike all three counts of the complaint. The court granted the motion on June 30, 2005. The plaintiff failed to plead over pursuant to Practice Book § 10-44, and the court rendered judgment on the defendants’ motion for judgment on January 6, 2006. This appeal followed.

“Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint . . . that party may do so by filing a motion to strike the contested pleading . . . .” Practice Book § 10-39 (a). “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 complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.” (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117-18, 889 A.2d 810 (2006).

I

The plaintiff claims that the court improperly granted the defendants’ motion to strike the first count of the complaint on the ground that he failed to pursue the statutory remedy available to him. We disagree.

In count one of his complaint, entitled “public policy wrongful discharge,” the plaintiff alleged that the defendants wrongfully discriminated against him in a variety of ways and terminated his employment in violation of § 46a-60 (a) (4). The defendants moved to strike count one because the plaintiff failed to pursue the available statutory remedy, citing case law in support thereof. The plaintiff objected to the motion to strike, claiming that in count one he had alleged essentially two causes of action: first, that the defendants had terminated his employment in violation of public policy against conspiracy, fraud, defamation and harassment, and second, that they had violated § 46a-60 (a) (4); in other words, common-law and statutory causes of action.* *

The court found that the essential allegation of the first count was stated in paragraph seven, to wit, “[o]n May 7, 2001, the plaintiff was summarily terminated from his employment in violation of § 46a-60 (a) (4).” The court also found that the plaintiff had failed to file a complaint with the commission on human rights and opportunities (commission). The court concluded, on the basis of Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 159-61, 745 A.2d 178 (2000), that the public policy exception to the general rule barring wrongful discharge claims by at-will employees is not available if the employee has an adequate statutory remedy and that the plaintiff could not sue the defendants for wrongful discharge on the basis of a public policy violation of § 46a-60 (a) (4) when he failed to take advantage of the remedy provided by the act.

On appeal, the plaintiff claims that the court improperly granted the motion to strike as to the first count of his complaint because (1) the court’s determination that he had not filed a complaint with the commission had no factual basis in the record and (2) to the extent that the court’s decision was based on a lack of subject matter jurisdiction, the statutory framework of the act operates as a time bar that must be pleaded as a special defense. Our review of the court’s memorandum of decision discloses that the court struck count one because it failed to allege a necessary predicate fact. Subject matter jurisdiction was not the basis of the court’s decision to grant the motion to strike.

The sum and substance of the plaintiffs claim is that the court improperly struck the first count because he, in fact, had pursued the statutory remedy under the act, and he included certain documents to that effect in the appendix to his appellate brief. When this court reviews a challenge to a motion to strike, “[w]e take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. . . . Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder.” (Internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 347, 890 A.2d 1269 (2006). Our plenary review of the plaintiffs complaint discloses that he did not allege that he had complied with the statutory remedy provisions of the act.

In the absence of an allegation that the plaintiff pursued his statutory rights with the commission, that factual predicate was not before the trial court. On appeal, the plaintiff has taken the position that he has letters from the commission releasing him to bring an action in the trial court, but because the defendants filed a motion to strike, the court was prohibited from considering facts outside the pleadings. The plaintiff misconstrues the necessity for fact pleading in our courts. As our standard of review provides, a motion to strike will be denied if the allegations of the complaint, if proven, would support a cause of action. Denial of a motion to strike is not tantamount to proof of the plaintiffs allegations but gives him the right to proceed to trial if there are genuine issues of material fact at issue.

“[A] motion to strike is essentially a procedural motion that focuses solely on the pleadings. ... It is, therefore, improper for the court to consider material outside of the pleading that is being challenged by the motion.” (Citation omitted.) Zirinsky v. Zirinsky, 87 Conn. App. 257, 271-72, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005). Nonetheless, “[a]ny plaintiff desiring to make a copy of any document apart of the complaint may, without reciting it or annexing it, refer to it as Exhibit A, B, C, etc., as fully as if it had been set out at length; but in such case the plaintiff shall serve a copy of such exhibit or exhibits on each other party to the action forthwith upon receipt of notice of the appearance of such party and file the original or copy of such exhibit or exhibits in court with proof of service on each appearing party. . . .” Practice Book § 10-29 (a). “A complaint includes all exhibits attached thereto.” Dlugokecki v. Vieira, 98 Conn. App. 252, 258 n.3, 907 A.2d 1269, cert. denied, 280 Conn. 951, 912 A.2d 483 (2006).

Our review of the record discloses that the plaintiff did not avail himself of our rules of practice by which he could have remedied the omission in his complaint. Practice Book § 10-44 provides in relevant part that “[w]ithin fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading . . . .” After the court granted the defendants’ motion to strike, the plaintiff failed to replead count one to include the absent factual allegations concerning the commission and to attach a copy of the commission’s letter releasing him to commence an action in the trial court. If a party fails to file a new pleading and the court has stricken the entire complaint in the time provided, the court may grant a motion for judgment against the party whose complaint was stricken. Practice Book § 10-44.

II

The plaintiffs second claim is that the court improperly granted the defendants’ motion to strike count two of the complaint, which alleged intentional infliction of emotional distress, because it adequately alleged facts constituting extreme and outrageous conduct beyond the act of discharging him from employment. We do not agree.

In count two, the plaintiff incorporated the allegations of the first count and alleged that the defendants’ conduct was extreme and outrageous and that they knew, intended, or should have known that emotional distress was likely to result. He also alleged that the defendants’ acts were done with malice and in reckless disregard of his state protected rights. The plaintiff alleged that he sustained injuries and was embarrassed to such a degree as to cause him extreme anxiety, sleeplessness, worry, personal and professional humiliation and other physical and emotional distress.

In their motion to strike count two, the defendants set forth the elements of a cause of action sounding in intentional infliction of emotional distress and argued that the alleged acts of the defendants did not rise to the level of extreme and outrageous conduct calculated to cause mental distress of a serious nature. See Petyan v. Ellis, 200 Conn. 243, 254 n.5, 510 A.2d 1337 (1986). In his objection, the plaintiff argued that it was not the defendants’ discharging him that was extreme and outrageous but that they harassed, intimidated and defamed him in the workplace and disciplined him without conducting a proper investigation.

The court granted the motion to strike after concluding that the allegations in count two did not rise to the level of extreme and outrageous as defined in the case law. The court found that all of the alleged harassment to which the defendants allegedly conspired could be considered insufficient as a matter of law, except the allegation in paragraph eight that “Calhoun, conspired with . . . Avery, to harass the plaintiff by agreeing and carrying out a pattern of conduct including . . . fabricating disciplinary actions ... as more particularly described herein.” The more particular description found by the court was contained in paragraph twelve: “On or about April 20, 2000, without proper investigation, the plaintiff was subjected to discipline for three . . . alleged acts of misconduct.” The court concluded that “[subjecting an employee to discipline without proper investigation [was] a far cry from ‘fabricating disciplinary actions’ or from extreme and outrageous conduct,” and that it was “akin to other employment related allegations [that] have been held to be insufficient to be extreme and outrageous.”

“[T]o prevail in a case for liability under a theory of intentional infliction of emotional distress, the plaintiff must plead and prove four elements. It must be shown:

(1) that the [defendant] intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct;

(2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiffs distress; and (4) that the emotional distress sustained by the plaintiff was severe. . . . Whether a defendant’s conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine. . . . Only where reasonable minds disagree does it become an issue for the jury. . . . Liability for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind. . . . [I]t is the intent to cause injury that is the gravamen of the tort . . . (Citations omitted; internal quotation marks omitted.) Wilson v. Jefferson, 98 Conn. App. 147, 159-60, 908 A.2d 13 (2006). “[I]n assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint ... set forth behaviors that a reasonable fact finder could find to be extreme or outrageous. In exercising this responsibility, the court is not fact finding, but rather is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress.” (Internal quotation marks omitted.) Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn. App. 835, 847, 888 A.2d 104 (2006).

On appeal, the plaintiff argues that in pleading his case, all he was required to do was allege facts that form the basis of his claim and that during trial, he could develop those facts to their full extent to demonstrate that the defendants’ conduct was extreme and outrageous. He also refers to other paragraphs in the complaint that allege conduct on the part of the defendants that he claims was extreme and outrageous. We are not persuaded by the plaintiffs arguments because when the allegations of count two are read in the light most favorable to him, they do not rise to the level of extreme and outrageous conduct.

“Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress.” (Internal quotation marks omitted.) Little v. Yale, 92 Conn. App. 232, 239-40, 884 A.2d 427 (2005), cert. denied, 276 Conn. 936, 891 A.2d 1 (2006). On the basis of this standard, we agree with the court that the allegations of the plaintiffs second count with respect to the defendants’ conduct do not reach the articulated standard and that the trial court’s conclusion is consistent with the decisions of this court and our Supreme Court in cases of employment termination. See, e.g., Appleton v. Board of Education, 254 Conn. 205, 210-12, 757 A.2d 1059 (2000) (principal’s making condescending comments in front of colleagues, questioning plaintiffs vision and ability to read, telephoning daughter to say plaintiff acting differently and asking police to escort plaintiff from school not intentional infliction of emotional distress); Petyan v. Ellis, supra, 200 Conn. 254 (stating reason for terminating employment, mainly for fraud and lying, on form for unemployment compensation not extreme and outrageous, as employer was exercising legal right).

Ill

The plaintiffs third claim is that the court improperly granted the motion to strike count three. The claim lacks merit.

In count three of his complaint, the plaintiff incorporated by reference the paragraphs of count one and also alleged: “18. [The defendants’] statements and termination of employment of the plaintiff were negligent acts which a reasonable person would have known would cause humiliation, pain and emotional distress upon the plaintiff. 19. [The defendants’] conduct, including, but not limited to the above, did cause the plaintiff severe humiliation, pain and financial loss.” The defendants argued that the count should be stricken because the plaintiff failed to allege egregious conduct on the part of the defendants as a matter of law. In objecting to the motion to strike, the plaintiff again conceded that mere termination of employment is not extreme and outrageous but argued that it was the defendants’ behavior during the process of terminating his employment that gave rise to the claim. The court, citing Parsons v. United Technologies Corp., 243 Conn. 66, 88-89, 700 A.2d 655 (1997), granted the motion to strike, stating that “mere termination of employment, even where it is wrongful, is not by itself, enough to sustain a claim for negligent infliction of emotional distress.”

On appeal, the plaintiff claims that the court failed to consider the allegations of the entire complaint and to consider properly his allegations of the defendants’ conspiracy to harass him and that the allegations of count three are sufficient to withstand the test enunciated in Perodeau v. Hartford, 259 Conn. 729, 792 A.2d 752 (2002). We do not agree.

“[I]n cases where the employee has been terminated, a finding of a wrongful termination is neither a necessary nor a sufficient predicate for a claim of negligent infliction of emotional distress. The dispositive issue in each case [is] whether the defendant’s conduct during the termination process was sufficiently wrongful that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that [that] distress, if it were caused, might result in illness or bodily harm.” (Emphasis in original; internal quotation marks omitted.) Id., 751; Morris v. Hartford Courant Co., 200 Conn. 676, 683, 513 A.2d 66 (1986); Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978).

On the basis of our plenary review of count three of the plaintiffs complaint, it is not clear to us what conduct on the part of the defendants constituted an unreasonable risk of causing emotional distress in the discharge process. In paragraph seven, the plaintiff alleges that his employment was terminated summarily on May 7, 2001. The plaintiff alleges that within about six months of his discharge the defendants denied his request to enroll in a computer course on March 19, 2001, denied his request for a lateral transfer on April 9, 2001, and on November 1, 2000, denied him a promotional opportunity. It is not clear to us how those allegations were part of the process by which the defendants terminated the plaintiffs employment. They appear to be nothing more than ordinary personnel decisions any employee might encounter in an ongoing employment relationship. What was arguably the worst conduct on the part of the defendants was set forth in paragraph twelve, in which the plaintiff alleged that almost one full year prior to his discharge, he was subjected to discipline for three acts of alleged misconduct without proper investigation. Many employees are subject to discipline, even unfairly, but there is nothing in the complaint that connects the alleged discipline that occurred in 2000 with the discharge process, which occurred almost one year later, that he alleges was the cause of his emotional distress.

Our Supreme Court has considered “the normal expectations of individuals in the context of an ongoing employment relationship. It is clear that such individuals reasonably should expect to be subject to routine employment-related conduct, including performance evaluations, both formal and informal; decisions related to such evaluations, such as those involving transfer, demotion, promotion and compensation; similar decisions based on the employer’s business needs and desires, independent of the employee’s performance; and disciplinary or investigatory action arising from actual or alleged employee misconduct. In addition, such individuals reasonably should expect to be subject to other vicissitudes of employment, such as workplace gossip, rivalry, personality conflicts and the like.

“Thus, it is clear that individuals in the workplace reasonably should expect to experience some level of emotional distress, even significant emotional distress, as a result of conduct in the workplace. There are few things more central to a person’s life than a job, and the mere fact of being demoted or denied advancement may be extremely distressing. That is simply an unavoidable part of being employed.” Perodeau v. Hartford, supra, 259 Conn. 757.

For the reasons stated, we conclude that the court properly granted the defendants’ motion to strike all counts of the complaint.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 46a-60 (a) provides in relevant part: “It shall be a discriminatory practice in violation of this section ... (4) For any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding under section 46a-82, 46a-83 or 46a-84 . . . .”

       The plaintiff alleged that he was denied a promotional opportunity on November 1, 2000, denied a request to enroll in a computer class to increase his opportunities for upward mobility on March 19, 2001, was subject to discipline on April 20,2000, without proper investigation and was threatened with discharge from employment for having filed a grievance.

       See Practice Book § 10-26 concerning separate counts of a complaint.

       In essence, the plaintiff conceded, as he must, that termination of at-will employment cannot sustain a claim for intentional infliction of emotional distress. See Parsons v. United Technologies Corp., 243 Conn. 66, 88-89, 700 A.2d 655 (1997).


author: FLYNN, C. J.

text:
    STATE OF CONNECTICUT v. THADDEUS LAVALLEE
    (AC 27207)
    Flynn, C. J., and McLacWan and Lavine, Js.

      Argued February 15
    officially released June 5, 2007

      Katharine S. Goodbody, special public defender, for the appellant (defendant).

      Ronald G. Weller, senior assistant state’s attorney, with whom, on the brief, were Kevin T. Kane, chief state’s attorney, and John H. Malone, senior assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, C. J.

The defendant, Thaddeus LaVallee, appeals from the judgments of conviction, rendered after a jury trial, of reckless endangerment in the first degree in violation of General Statutes § 53a-63 (a), attempt to commit assault in the second degree in violation of General Statutes §§ 53a-49 (a) (2), and 53a-60 (a) (2) and reckless driving in violation of General Statutes § 14-222. On appeal, the defendant claims that (1) the trial court improperly refused to admit the summons into evidence as a full exhibit and (2) the prosecutor engaged in impropriety that deprived him of a fair trial. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. On February 25, 2002, at approximately 9 p.m., Michael Richey, a truck driver, was driving the cab portion of his tractor trailer on Route 190 in Enfield. Richey was on his way to pick up a trailer from a company in Suffield. It was when Richey reached Enfield that the defendant commenced the first of at least twelve aggressive actions using his motor vehicle. As Richey started to cross a bridge in Enfield, the defendant, who was driving a late model Cadillac, passed Richey on the right and cut in front of his truck, forcing Richey to swerve his truck into the right lane to avoid a collision. Richey continued traveling in the right lane. The defendant then passed Richey on the left side, cutting him off and forcing Richey’s truck to hit the curb, and the defendant sped away until he came to a stop in a left turn lane at a traffic light. After approaching the traffic light, Richey turned right onto Route 159. Instead of turning left, the defendant suddenly turned right, passed Richey and again cut him off. A few minutes later, Richey proceeded on Route 159, but he was forced to slam on the brakes when he encountered the defendant’s motor vehicle that was stopped in the middle of the road without its lights on. The defendant sped away until he reached the traffic light at the intersection of Route 190. As Richey approached the traffic light, he put on his left turn signal, intending to turn onto Route 190. After the light turned green, the defendant drove into the intersection, stopped, turned left and blocked Richey from being able to make the left turn onto Route 190. As a result, Richey was forced to continue on Route 159.

Shortly after Richey notified the police of the defendant’s conduct, the defendant again passed him on the left and cut him off, causing Richey to drive onto an abutting lawn. The defendant proceeded to stop in the road in front of Richey. Richey decided to stop his truck and wait a few minutes before continuing onto Hickory Street. Once Richey was driving on Hickory Street, the defendant again stopped several times in front of Richey. Richey then turned left onto the southbound lane of Route 75. Thereafter, the defendant approached Richey, driving north in the southbound lane of Route 75. After viewing the defendant heading straight toward him, Richey immediately slammed on his brakes. At the last moment, the defendant swerved his vehicle into the northbound lane in order to avoid a collision. The defendant, however, then made a U-turn and again headed toward Richey. The defendant passed Richey, cut him off and eventually drove into a driveway. When Richey’s truck approached that driveway, the defendant backed out of the driveway in order to block Richey, forcing Richey to stop his truck. Once Richey again was traveling on Route 75, the defendant attempted to strike Richey’s track head on, causing Richey to drive onto a grassy area.

Officer Shane Nelson of the Suffield police department was dispatched to the area of Routes 159, 190 and 75 and conducted an investigation. When Nelson arrived, however, the defendant already had driven away, and Nelson was unable to locate the defendant that night. Richey later provided a statement on March 5,2002. After Richey informed Nelson of the defendant’s license plate number, Nelson was able to identify the defendant as the owner of the Cadillac. On March 16, 2002, Nelson contacted the defendant, inquiring about the events of February 25, 2002. Initially, the defendant informed Nelson that he did not recall what had transpired on the night of February 25, 2002, but he later indicated that he may have been present in the Cadillac that night. The defendant later stated that he may want to file a complaint against Richey. The defendant, however, decided against filing a complaint after Nelson informed him that the statement form contained an advisory of the penalties of filing a false statement. Approximately one month after the incident, Nelson issued a summons to the defendant via certified mail, which listed the misdemeanor offense of reckless driving.

On April 1, 2002, the defendant was charged with reckless driving under docket number MV-02-296326. Subsequently, the defendant was charged in a June 11, 2002 short form substitute information with reckless driving, reckless endangerment in the first degree and attempt to commit assault in the second degree. The charges of reckless endangerment in the first degree and attempt to commit assault in the second degree then were assigned to docket number CR-02-124074-S, and the reckless driving charge remained on the motor vehicle docket. A long form substitute information was filed on October 4, 2002. Following a trial, the jury found the defendant guilty of the three charges. Thereafter, the court sentenced the defendant to a total effective term of five years incarceration, suspended after three years, with five years of probation. Additional facts will be set forth where necessary. This appeal followed.

I

The defendant first claims that the court abused its discretion when it refused to admit into evidence as a full exhibit the summons issued by Nelson. The defendant argues that the court improperly concluded that its admission would cause confusion. We disagree and conclude that this claim lacks merit.

We begin by setting forth our well established standard of review governing evidentiary claims. “The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” (Citations omitted; internal quotation marks omitted.) State v. Coleman, 241 Conn. 784, 789, 699 A.2d 91 (1997). “When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful. ... [A] nonconstitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict.” (Citation omitted; internal quotation marks omitted.) State v. Ritrovato, 280 Conn. 36, 56, 905 A.2d 1079 (2006).

Certain additional facts are relevant to the defendant’s claim. During cross-examination, defense counsel questioned Nelson about the contents of the summons that he had issued to the defendant approximately one month after the incident. In response, Nelson testified that the summons was issued for the offense of reckless driving and did not include any other charges. Despite Nelson’s testimony indicating that reckless driving was the sole offense listed on the summons, defense counsel then sought to have the summons admitted as a full exhibit. Although the court did not permit the introduction of the summons as a full exhibit, the court allowed defense counsel to question Nelson about the charge listed on the summons.

In the present case, the defendant’s claim that the court made an improper evidentiary ruling requires little discussion because even if we were to assume, without deciding, that the court improperly had excluded the summons, the defendant has failed to demonstrate how the court’s ruling was harmful. In adducing testimony from Nelson, the defendant was able to show that the more serious charges of reckless endangerment in the first degree and attempt to commit assault in the second degree were not listed on the summons. In his appellate brief, the defendant makes nothing more than a conclu-sory statement that the exclusion of the summons was harmful. Absent any analysis as to how the ruling harmed him, we are unable to conclude that the exclusion of this evidence was an abuse of discretion. Accordingly, we conclude that the defendant’s claim lacks merit.

II

The defendant next claims that he was denied the right to a fair trial as a result of prosecutorial impropriety during closing arguments in which the prosecutor improperly alluded to facts that were not in evidence and improperly bolstered Richey’s credibility. Although we agree with the defendant that the challenged remark was improper, we conclude that the impropriety did not deprive the defendant of his constitutional right to a fair trial.

The defendant acknowledges that he did not object to the alleged instance of prosecutorial impropriety at trial. We, nevertheless, review his claim because with claims of prosecutorial impropriety, “it is unnecessary for the defendant to seek to prevail under the specific requirements of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and, similarly, it is unnecessary for a reviewing court to apply the four-pronged Golding test.” (Internal quotation marks omitted.) State v. Lopez, 280 Conn. 779, 798-99, 911 A.2d 1099 (2007).

“In analyzing claims of prosecutorial impropriety, we engage in a two step analytical process. . . . The two steps are separate and distinct. . . . We first examine whether prosecutorial impropriety occurred. . . . Second, if an impropriety exists, we then examine whether it deprived the defendant of his due process right to a fair trial.” (Citations omitted.) State v. Fauci, 282 Conn. 23, 32, 917 A.2d 978 (2007). “Only if we conclude that prosecutorial [impropriety] has occurred do we then determine whether the defendant was deprived of his due process right to a fair trial.” State v. Schiavo, 93 Conn. App. 290, 302, 888 A.2d 1115, cert. denied, 277 Conn. 923, 895 A.2d 797 (2006).

Where prosecutorial impropriety is found to have occurred, our Supreme Court in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987), has enumerated six factors to guide the determination of whether the entire trial was so infected with unfairness as to deprive the defendant of a fair trial. These factors include the extent to which the impropriety was invited by defense conduct, the severity and the frequency of the impropriety, the centrality of the impropriety to the critical issues in the case and the strength of the curative measures adopted and of the state’s case. Id. In evaluating these six Williams factors, we are constrained by the precedent of our Supreme Court, which has held that prosecutorial impropriety far more egregious than that here did not deprive the defendants of a fair trial. See State v. Thompson, 266 Conn. 440, 479-80, 832 A.2d 626 (2003); see also State v. Dews, 87 Conn. App. 63, 77-78, 864 A.2d 59, cert. denied, 274 Conn. 901, 876 A.2d 13 (2005).

In the present case, the challenged remark occurred during the prosecutor’s closing argument. “While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or even to suggest an inference from, facts not in evidence, or to present matters which the jury [has] no right to consider.” (Internal quotation marks omitted.) State v. Sells, 82 Conn. App. 332, 340, 844 A.2d 235, cert. denied, 270 Conn. 911, 853 A.2d 529 (2004). The defendant takes issue with the prosecutor’s remark that “Officer Nelson testified the way he gave the statement was to warn everyone of the penalties of a false statement. Mr. Richey had a few days to think about it, went back, was presumably given that warning and made the statement.” The defendant argues that this remark was improper because there was no evidence that “Nelson [had] warned [Richey] of [the] penalties or that this was his normal mode of operation.” The state argues that there was evidence that Richey had given a written statement to the police, and, therefore, the prosecutor’s remark amounted to a request that the jury draw an inference that Richey had been warned about the penalties of providing a false statement via the advisory that is contained on the statement forms. We agree with the defendant that this statement was improper.

At trial, Nelson asserted that the statement forms contained an advisory that the “statement has to be truthful under penalty of filing a false statement”; however, Nelson did not testify, as the prosecutor argued, that he expressly told everyone who provided a statement about the penalties of filing a false statement. Furthermore, there is no testimonial or documentary evidence indicating that Richey had provided a written statement containing such an advisory. We conclude that it would not be a reasonable inference from the facts in evidence that Nelson had warned Richey about the penalties of filing a false statement, and, therefore, we conclude that the prosecutor’s remark was improper.

On the basis of our review of the improper comment in light of the entire trial, however, we further conclude that the remark did not deprive the defendant of his due process right to a fair trial. The impermissible inference that the prosecutor sought to have the jury draw was that Richey and the defendant both were warned about the penalties of providing a false statement but that only the defendant decided not to file a statement to press charges. The defendant or his counsel did not invite the prosecutor to importune the jury to infer a fact from another fact that was not in evidence. Therefore, the comment could not be said to have been invited. However, the comment was not condemnatory and, therefore, not severe. No objection was made at the time of trial, and no specific curative instruction was sought or given. Although credibility was a central issue, as the state concedes, there also was evidence before the jmy concerning how the defendant changed his story several times when questioned by the police about the events of February 25, 2002, thus weakening his case. Moreover, the prosecutor’s remark was an isolated comment, which was mitigated by the judge’s general instruction to the jury that its recollection of the evidence controlled. Given the precedents, which bind us, the isolated nature of the comment and the court’s instruction, we are not persuaded that the prosecutor’s improper remark deprived the defendant of his due process right to a fair trial.

The judgments are affirmed.

In this opinion the other judges concurred.

       In accordance with the directive of our Supreme Court in State v. Fauci, 282 Conn. 23, 917 A.2d 978 (2007), when reviewing a prosecutor’s allegedly improper statements, we now use the term “prosecutorial impropriety” rather than the traditional term “prosecutorial misconduct.” Id., 26 n.2. Recognizing that labeling “what is merely improper as misconduct is a harsh result that brands a prosecutor with a mark of malfeasance when his or her actions may be a harmless and honest mistake,” our Supreme Court determined that the term “prosecutorial impropriety” is more appropriate. Id. The usage of the new terminology, however, does not change the analysis. Id.

       The defendant also was charged with violation of probation pursuant to General Statutes § 53a-32. After the jury found the defendant guilty of the charges stemming from the February 25, 2002 incident, the court made a finding on October 10, 2002, that the defendant had violated his probation.

       Specifically, the court ruled that the admission of the summons as a full exhibit would confuse the jury about who is the ultímate prosecuting authority. We note that although police officers in Connecticut make arrests, it is the prosecutorial authority that decides “for what charges [citizens] are to be held accountable.” Massameno v. Statewide Grievance Committee, 234 Conn. 539, 575, 663 A.2d 317 (1995).

       Further, we note that the proffered evidence was cumulative of testimony that already had been admitted. Immediately prior to defense counsel’s attempt to have the summons admitted as a full exhibit, the jury heard testimony from Nelson. His testimony indicated that only the charge of reckless driving was listed on the summons. Therefore, this information already was before the jury.

       Specifically, the court stated: “In reaching your verdict, you should consider all of the testimony and exhibits received into evidence. Certain things are not evidence, and you may not consider them in deciding what the facts are. These include arguments and statements by the lawyers. The lawyers are not witnesses. What they have said in their closing arguments is intended to help you interpret the evidence, but it is not evidence. If the facts you remember are different from the way the lawyers have stated them, your memory of them controls.”


author: BISHOP, J.

text:
    MARGARET L. CZARZASTY v. ANTHONY F. CZARZASTY
    (AC 26601)
    Bishop, Gruendel and Lavine, Js.

      Argued March 12
    officially released June 5, 2007

      Campbell D. Barrett, with whom were Kevin W. Had-field, certified legal intern, and, on the brief, C. Michael Budlong and Heather St. Germaine, certified legal intern, for the appellant (defendant).

      Stuart M. Roth, with whom was Andrew W. Krevolin, for the appellee (plaintiff).
   Opinion

BISHOP, J.

The defendant, Anthony F. Czarzasty, appeals from the judgment of dissolution of his marriage to the plaintiff, Margaret L. Czarzasty, challenging the trial court’s distribution of marital property. The defendant claims that the court improperly determined that (1) his unvested interest in his employer’s performance based deferred compensation plan was subject to equitable distribution under General Statutes § 46b-81 and (2) he violated the automatic orders applicable in dissolution proceedings by withdrawing funds from the parties’ joint cash management account after the initiation of the dissolution proceedings and wrongly credited that money to his share of the marital estate. We affirm the judgment of the trial court.

The court found the following relevant facts. The parties were married on October 23, 1992. The plaintiff had commenced employment with Merrill Lynch in 1980 and, throughout the marriage, was employed in various capacities, including as a senior financial advisor, vice president and certified financial manager. At the time of the marriage, the plaintiff had assets in excess of $1 million.

The defendant was the president of Czar Construction Company at the time of the marriage. In 1994, after Czar Construction was dissolved, the plaintiff assisted the defendant in obtaining employment at Merrill Lynch. The defendant had no prior experience or training for a position as a financial consultant and had to undergo an extensive training program, which ended in early 1997.

Shortly thereafter, the parties began to work together as an investment team at Merrill Lynch. Initially, the parties split their team commissions. The plaintiff, who had twenty-two years experience in the field, received 70 percent, and the defendant, who had slightly more than three years experience, received 30 percent. Although the defendant’s actual production at the commencement of the arrangement was less than 20 percent, the plaintiff agreed to the split because it would make the defendant more successful and would permit him to reach certain performance based goals more quickly. The couple remained together as an investment team until 2001. At the time of trial, both parties remained employed at Merrill Lynch.

Merrill Lynch provides various financial plans to its employees, including the financial consultant capital accumulation award plan, the weatherbuilder account plan and the growth award plan for financial advisors. Each of these plans is in the nature of a deferred compensation plan and does not vest until retirement or until an employee becomes eligible for retirement and may be forfeited if the employee engages in misconduct or joins a competitor of Merrill Lynch within two years of retirement.

In addition, Merrill Lynch offers the investment certificate plan (certificate), a performance based deferred compensation award in the amount of $100,000 that is awarded at the conclusion of ten years of employment with Merrill Lynch as long as a specific production goal is met during the ten year period. As of the date of dissolution, the plaintiff had already received her certificate, and the defendant was two years shy of earning his award. The defendant was on target to reach his production goal prior to the expiration of the ten year period. The court determined that because the certificate was “intended to procure [ten] years of employment at a certain total level of attainment and that approximately two years of that period [would] take place postdivorce,” the certificate had been “approximately [80 percent] earned” as of the date of dissolution. The certificate was not listed as an asset on the defendant’s financial affidavit.

The parties also shared a joint cash management account with Merrill Lynch from which they paid household expenses and into which they both regularly deposited their paychecks. Shortly after the initiation of the dissolution proceedings, the defendant withdrew $31,500 from this account and deposited it into his own account. The defendant testified that he withdrew the funds because he needed money to pay counsel fees and other expenses.

On May 11, 2005, the court issued a memorandum of decision dissolving the marriage of the parties and establishing financial orders. The court ordered, inter alia, that the parties retain the assets listed on their respective financial affidavits and that the defendant retain the $31,500 that he had wrongfully withdrawn from the parties’ joint account in violation of the automatic orders as part of his property settlement. Additionally, the court explicitly found that the defendant’s interest in the certificate was property subject to division pursuant to § 46b-81. Thus, the court, in effect, placed the certificate in the defendant’s column. This appeal followed.

On appeal, the defendant contends that the court improperly determined that (1) the certificate is property within the scope of § 46b-81 for purposes of distribution and (2) he violated the automatic orders contained in Practice Book § 25-5 by withdrawing funds from the parties’ joint cash management account. We are not persuaded.

“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.” (Internal quotation marks omitted.) Quasius v. Quasius, 87 Conn. App. 206, 208, 866 A.2d 606, cert. denied, 274 Conn. 901, 876 A.2d 12 (2005).

The first issue before us concerning whether the certificate constitutes property pursuant to § 46b-81 presents a question of statutory interpretation. It is well established that statutory interpretation involves a question of law over which we exercise plenary review. Friezo v. Friezo, 281 Conn. 166, 180, 914A.2d 533 (2007). “Relevant legislation and precedent guide the process of statutory interpretation. [General Statutes § l-2z] provides that, [t]he meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) Auto Glass Express, Inc. v. Hanover Ins. Co., 98 Conn. App. 784, 795, 912 A.2d 513 (2006), cert. denied, 281 Conn. 914, 916 A.2d 55 (2007).

“The distribution of assets in a dissolution action is governed by § 46b-81, which provides in pertinent part that a trial court may ‘assign to either the husband or the wife all or any part of the estate of the other. . . . 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 . . . shall 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, 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.’ . . . This approach to property division is commonly referred to as an ‘all-property’ equitable distribution scheme. See 3 Family Law and Practice (A. Rutkin ed., 1995) § 37.01 [2] [a] [v], p. 37-19. [Section 46b-81] does not limit, either by timing or method of acquisition or by source of funds, the property subject to a trial court’s broad allocative power. A. Rutkin, E. Effron & K. Hogan, 7 Connecticut Practice Series: Family Law and Practice with Forms (1991) § 27.1, pp. 398-400.” Krafick v. Krafick, 234 Conn. 783, 792, 663 A.2d 365 (1995).

“There are three stages of analysis regarding the equitable distribution of each resource: first, whether the resource is property within § 46b-81 to be equitably distributed (classification); second, what is the appropriate method for determining the value of the property (valuation); and third, what is the most equitable distribution of the property between the parties (distribution).” Id., 792-93. It is the first part of this analysis that we consider in this case.

Neither § 46b-81 nor any other closely related statute defines property or identifies the types of property interests that are subject to equitable distribution in dissolution proceedings. When a statute does not define a term, we look to the common understanding expressed in the law and in dictionaries. See General Statutes § 1-1 (a); State v. Webb, 62 Conn. App. 805, 813, 772 A.2d 690 (2001).

Black’s Law Dictionary (6th Ed. 1990) defines property as the term “commonly used to denote everything which is the subject of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal; everything that has an exchangeable value or which goes to make up wealth or estate. It extends to every species of valuable right and interest, and includes real and personal property, easements, franchises, and incorporeal hereditaments . . . .” The term has been defined elsewhere in the General Statutes. See General Statutes § 52-278a (e) (for purposes of attachment, property means “any present or future interest in real or personal property, goods, chattels or choses in action”). Rather than narrow the plain meaning of the term “property” from its ordinarily comprehensive scope, in enacting § 46b-81, “the legislature acted to expand the range of resources subject to the trial court’s power of division, and did not intend that property should be given a narrow construction.” Bornemann v. Bornemann, 245 Conn. 508, 515-16, 752 A.2d 978 (1998).

In Rubin v. Rubin, 204 Conn. 224, 527 A.2d 1184 (1987), the court stated that “[property entails interests that a person has already acquired in specific benefits.” (Internal quotation marks omitted.) Id., 230-31. The court held that a contingent remainder interest in an inter vivos trust held by a spouse did not constitute property subject to assignment by the trial court to the other spouse pursuant to § 46b-81 in rendering judgment dissolving the marriage because, while the plaintiffs mother was still living, these interests constituted mere expectancies, as the mother retained the power to revoke or reduce her son’s contingent interest at any time. Id., 235-39.

Similarly, in Simmons v. Simmons, 244 Conn. 158, 708 A.2d 949 (1998), the Supreme Court concluded that a medical degree earned by one spouse during a marriage is not property subject to distribution under § 46b-81 because the medical degree entailed no presently existing, enforceable right to receive income in the future but, rather, represented only an opportunity for the degree holder to earn future income. Id., 168. The court held that “[t]he possibility of future earnings . . . represents a mere expectancy, not a present right”; id., 170; and that “[t]he terms estate and property, as used in the statute [§ 46b-81] connote presently existing interests.” (Emphasis in original; internal quotation marks omitted.) Id.

One year later, in Smith v. Smith, 249 Conn. 265, 272, 752 A.2d 1023 (1999), the Supreme Court held that the trial court improperly retained continuing jurisdiction in anticipation of dividing the plaintiffs expected interest in a family trust, if and when the plaintiff ever obtained such an interest. The court’s conclusion was based, in part, “on the fact that the marital estate divisible pursuant to § 46b-81 refers to interests already acquired, not to expected or unvested interests, or to interests that the court has not quantified.” Id., 274. The court opined: “The purpose of a property division pursuant to a dissolution proceeding is to unscramble existing marital property in order to give each spouse his or her equitable share at the time of dissolution. . . . [A]n attempt to divide expected property is outside the scope of the statutes because it does not divide the property that the [parties] possessed during their marriage.” (Citations omitted; emphasis in original.) Id., 275.

Earlier, in the employment context, the court, in Krafick v. Krafick, supra, 234 Conn. 783, was called on to determine whether the term “property” in § 46b-81 was broad enough to include vested, though unmatured, pension rights. The court concluded that the legislature intended the term to be broad in scope and held that vested pension benefits come within the meaning of the term “property” in § 46b-81 “as the interest in receiving such benefits is contractual in nature”; id., 795; and because they “represent an employee’s right to receive payment in the future, subject ordinarily to his or her living until the age of retirement.” (Emphasis in original.) Id., 797. In so concluding, the court noted that the classification of “vested pension benefits as property does not run afoul of the limitation, recognized in the context of inheritance and trust interests, that § 46b-81 applies only to presently existing property interests, not mere expectancies. ... An expectancy is only the bare hope of succession to the property of another, such as may be entertained by an heir apparent. . . . As we have stated, [s]uch a hope is inchoate. It has no attribute of property, and the interest to which it relates is at the time nonexistent and may never exist. . . . The term expectancy describes the interest of a person who merely foresees that he might receive a future beneficence .... [T]he defining characteristic of an expectancy is that its holder has no enforceable right to his beneficence. . . . The fact that a contractual right is contingent upon future events does not degrade that right to an expectancy.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id.

The court employed a similar analysis in Bornemann v. Bornemann, supra, 245 Conn. 517-18, in which it concluded that stock options are analogous to pension benefits in that they bestow a right upon the holder to receive apromised benefit under prescribed conditions. “ [M]uch like the right of a pension beneficiary to collect a pension once the particular conditions under which the pension was offered have been satisfied—typically, the attainment of a prescribed age and the fulfillment of a required number of years of service for the employer—the holder of a stock option possesses the right to accept, under certain conditions and within a prescribed time period, the employer’s offer to sell its stock at a predetermined price. . . . Should the employer attempt to withdraw the offer, the employee has a chose in action in contract against the employer. . . . Conversely, [t]he defining characteristic of an expectancy is that its holder has no enforceable right to his beneficence.” (Citations omitted; internal quotation marks omitted.) Id., 517. Therefore, although the stock options at issue in that case had not yet “matured” or “vested” at the time of the dissolution, the options created an enforceable right in the defendant husband, which the court held to be a presently existing, contractual interest in property that is encompassed within the broad definition of property under § 46b-81. Id., 517-18.

Accordingly, until 2001, the test for determining whether an interest or benefit constituted property for purposes of equitable distribution under § 46b-81 had been whether the party had an existing enforceable right to it. In cases in which such a right did not exist on the date of dissolution, our Supreme Court refused to recognize that interest or benefit as property subject to distribution under § 46b-81. Then came Bender v. Bender, 258 Conn. 733, 785 A.2d 197 (2001). In Bender, the record disclosed that, at the time of the marital dissolution, the defendant had been employed as a firefighter for approximately nineteen years and that he would be entitled to receive a municipal pension in the event that he completed twenty-five years of service. Thus, when the marriage was dissolved, the defendant did not then have a present right to the future receipt of a pension because there was no vesting of pension rights before twenty-five years. His rights vis-a-vis his pension were limited to a return of his contributions to the pension during his years of service. The principal issue confronting the court in Bender was whether the defendant’s unvested pension benefits were property pursuant to § 46b-81. Answering that question in the affirmative, our Supreme Court focused not on whether the defendant had any presently existing enforceable rights regarding his pension expectancy but, rather, on whether his eventual realization of pension benefits was more than an expectancy. The court held that “in determining whether a certain interest is property subject to equitable distribution under § 46b-81, we look to whether a party’s expectation of a benefit attached to that interest was too speculative to constitute divisible marital property.” Id., 748. The court concluded that the trial court had correctly classified the entire unvested pension as marital property, notwithstanding the absence of any presently existing enforceable right, on the ground that his expectation in the pension plan was “sufficiently concrete, reasonable and justifiable as to constitute a presently existing property interest for equitable distribution purposes.” Id., 749.

In so concluding, the court seems to have recast the analysis used to determine whether an interest or benefit is property under § 46b-81 to a more probabilistic assessment untethered to the existence of a presently existing enforceable right. Consequently, since Bender, whether a party has a presently existing enforceable right to the present or future receipt of the asset appears no longer to be determinative. Instead, the determination of whether a claimed asset is subject to distribution pursuant to § 46b-81 appears to depend on the degree of certainty revealed by the evidence that the litigant will eventually receive the asset. In sum, in accordance with the dictates of Bender, in confronting property claims under § 46b-81, trial courts must make an assessment on a case-by-case basis of the likelihood of the person’s receiving the asset claimed by his or her spouse. If the likelihood is not too speculative, then it is property subject to valuation and distribution.

In the present case, the crux of the defendant’s argument is that the defendant’s prospective receipt of the certificate is unlike the pension in Bender because, in this instance, the defendant’s receipt of the certificate is, in part, contingent on his future performance, whereas in Bender the defendant merely had to remain employed as a firefighter for an additional period of years for his pension to vest. The defendant claims that because he had no presently existing right to the certificate at the time of dissolution, it was, therefore, no more than a mere expectancy. As in Bender, the trial court in this instance did not comment on whether the party had a presently existing contractual right to the future receipt of the asset in question. Rather, the court made an assessment of the probability that the defendant would, in fact, receive the asset. In its analysis, the court found that the defendant had worked for Merrill Lynch for eight years, and, therefore, was only two years shy of receiving the certificate, and his level of production was on target to meet the required goal. The court opined that “[i]f [the defendant] meets the conditions of the certificate ... as he is fully capable of doing, he has a legal right to the payment of it.” Relying on the court’s statement in Bender that “sources of deferred income, such as pension benefits and trust interests, whether vested or not, constitute property subject to distribution, provided that the contingent nature of the interest does not render the interest a mere expectancy”; (internal quotation marks omitted) id., 747; the court in this case found that “[t]he contingent nature of the interest here is readily obtainable by [the defendant], based upon his employment history, performance record and the projections of the Merrill Lynch managing director for his region.” The court concluded, therefore, that the expectation of receiving the certificate was not so speculative as to constitute a mere expectancy and was sufficiently concrete as to constitute property pursuant to § 46b-81. Although the court, in Bender, did not articulate the degree of certainty that an expectancy must possess in order to qualify as property subject to equitable distribution, we cannot conclude that, in the face of this imprecise precedent, the court abused its discretion in considering the certificate when fashioning its financial orders.

The defendant next claims that the court improperly determined that he violated the automatic orders under Practice Book § 25-5 when he withdrew funds from the parties’ joint cash management account. We disagree.

As noted previously, this court will not disturb a trial court’s orders in a domestic relations case unless the court has abused its discretion. In its memorandum of decision, the court found that the defendant “emptied the parties’ joint financial account by withdrawing $31,500 less than two days after the commencement by the plaintiff of the divorce, excusing it by saying he needed money for attorney fees and other expenses.” The court found that, in doing so, he violated the automatic orders. By way of articulation, the court further found that, since 1997, the parties had maintained the joint account into which both of their salaries were regularly deposited and from which the monthly mortgage payment for the marital residence was automatically withdrawn. The defendant withdrew $31,500 from that account without consulting the plaintiff, leaving insufficient funds to cover the monthly mortgage payment. The court found that the withdrawal was less than two days after the initiation of the dissolution action and after he had consulted with counsel, and that although the defendant claimed that he needed the funds for counsel fees, there was no credible evidence that it was used for that purpose or for any other purpose allowed under the automatic orders.

On the basis of the evidence presented, we conclude that the court reasonably could have reached the conclusion that the defendant violated the automatic orders in depleting the parties’ joint account.*

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 25-5 (a) provides in relevant part: “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 . . .
      “(1) Neither party shall sell, transfer, encumber . . . 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. . . .”

       We further note that the defendant was not penalized for violating the automatic orders. He was allowed to keep the funds that he withdrew as part of the property settlement. In its articulation, the court indicated that it considered one half of the $31,500 from the joint account to be the plaintiff’s share of the withdrawn funds and included her $15,750 in the property distribution received by the defendant.


author: FOTI, J.

text:
    TOLL BROTHERS, INC. v. INLAND WETLANDS COMMISSION OF THE TOWN OF BETHEL ET AL.
    (AC 27652)
    Gruendel, Harper and Foti, Js.
    Argued February 7
    officially released June 5, 2007

      Robert A. Fuller, for the appellant (named defendant).

      Joseph P. Williams, with whom was Beth Bryan Crit-ton, for the appellee (plaintiff).
   Opinion

FOTI, J.

The defendant inland wetlands commission of the town of Bethel (commission) appeals from the judgment of the trial court sustaining the appeal of the plaintiff, Toll Brothers, Inc., from the commission’s denial of the plaintiffs application for an inland wetlands permit. On appeal, the commission claims that the court improperly (1) sustained the plaintiffs appeal and (2) remanded the case with direction to issue a permit to the plaintiff. We affirm in part and reverse in part the judgment of the trial court.

The plaintiff proposed to build an affordable housing development containing 129 townhouse units on an approximately 22 acre parcel of land located on Reservoir Street in Bethel. That parcel, which formerly was used as a quarry, contains four wetlands designated by the letters A through D. Wetlands A, B and C together occupy a total area of only 0.13 acres, but wetland D is much larger, occupying 2.28 acres. The plaintiff planned to fill in wetland A and to enlarge wetland B in order to improve drainage on the site. Both of those wetlands previously were disturbed by the quarry operation. The plaintiff did not plan to alter wetlands C and D, but it proposed to build a retaining wall in close proximity to wetland D.

The plaintiff applied to the commission for an inland wetlands permit on December 16,2002. Following three days of public hearings, the commission denied the plaintiffs application on July 28,2003. The plaintiff then appealed to the Superior Court pursuant to General Statutes § 22a-43. In its memorandum of decision, the court found that the commission had considered the impact of the plaintiffs construction activities only on wetland D and that the record lacked substantial evidence of a likely effect on wetland D resulting from the plaintiffs activities. The court concluded that the commission had exceeded its authority pursuant to General Statutes § 22a-42a (f), which provides in relevant part that “[i]f a municipal inland wetlands agency regulates activities within areas around wetlands or watercourses, such regulation shall ... (2) apply only to those activities which are likely to impact or affect wetlands or watercourses.” See also AvalonBay Communities, Inc. v. Inland Wetlands Commission, 266 Conn. 150, 163, 832 A.2d 1 (2003). The court therefore sustained the plaintiffs appeal and remanded the case to the commission with direction to issue a permit to the plaintiff under such terms and conditions as the commission reasonably chose to prescribe. The commission then successfully obtained certification for review by this court pursuant to General Statutes § 8-8 (o). This appeal followed.

I

The commission first claims that the court improperly sustained the plaintiffs appeal because the record contains substantial evidence that supports the commission’s decision. We disagree.

“[I]n reviewing an inland wetlands agency decision made pursuant to [its regulations], the reviewing court must sustain the agency’s determination if an examination of the record discloses evidence that supports any one of the reasons given. . . . The evidence, however, to support any such reason must be substantial; [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency. . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied injudicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence .... Evidence of general environmental impacts, mere speculation, or general concerns do not qualify as substantial evidence.” (Citations omitted; internal quotation marks omitted.) River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57, 70-71, 848 A.2d 395 (2004).

In support of its claim, the commission argues that it considered the impact of the plaintiffs activities on wetlands A and B and found that those wetlands likely would be affected by the activities, but the court disregarded that finding and instead focused on wetland D. The commission contends that the plaintiffs proposal to fill in wetland A and to enlarge wetland B indicated that there will be a likely effect on those wetlands as a result of the project, and, therefore, the commission needed no further evidence on which to support its denial of the plaintiffs application. In response to the commission’s argument, the plaintiff points out that the commission did not distinguish among the four wetlands in its written decision. Even if we were to assume that the commission made a finding of a likely impact on wetlands A and B, we disagree that the plaintiffs proposal by itself constituted substantial evidence on which to deny the plaintiffs application. The commission had a duty to evaluate the plaintiffs application on the basis of substantial evidence, but the commission appears instead merely to have assumed that any proposed alterations to wetlands A and B justified a denial of that application. That assumption was improper. Furthermore, the record lacks substantial evidence that the proposed alterations to wetlands A and B are valid reasons to deny the plaintiffs application.

The commission also argues that it considered the density of the plaintiffs affordable housing development and found that the large number of proposed townhouse units likely will affect all four of the wetlands. The commission acknowledges that, pursuant to General Statutes § 8-2g, the plaintiffs development is eligible for a special exemption from the density limits established for the zoning district in which it is located. The commission nevertheless contends that the plaintiffs plan to exceed those density limits in accordance with § 8-2g constitutes substantial evidence that the project likely will affect the wetlands. We disagree because any connection between the project’s density and a likely impact on the wetlands is merely speculative. The record does not contain substantial evidence to support the commission’s conclusion regarding the density of the project.

Likewise, our review of the record indicates that it lacks substantial evidence of a likely impact on wetland D. Although the plaintiffs proposal includes elements that could affect wetland D, such as a retaining wall to be built in close proximity to it, the commission did not have substantial evidence specifically indicating a likely impact on wetland D. Instead, the commission improperly relied on evidence of general environmental impacts such as a statement by Sean Hayden, a soil scientist, who indicated that excessive development harms wetlands. The commission also improperly relied on evidence regarding aspects of the wetlands that it had no authority to regulate, such as the impact on wildlife dependent on the wetlands. See AvalonBay Communities, Inc. v. Inland Wetlands Commission, supra, 266 Conn. 163. The commission has failed to identify any evidence in the record that satisfies the substantial evidence rule. We therefore conclude that the court correctly sustained the plaintiffs appeal.

II

The commission next claims that the court improperly remanded the case with direction to issue an inland wetlands permit to the plaintiff. We agree.

“[N]ormally, [w]hen agency action is overturned . . . because of invalid or insufficient findings, we have held that a court must ordinarily remand the matter under consideration to the agency for further consideration. ... A direct order to the commission is therefore legally unwarranted and the case must be remanded to the commission for further consideration of any conditions that should be attached to the issuance of the permit as supported by evidence in the present record. ... An exception to that rule, however, exists when it appears as a matter of law that there is only one single conclusion that the [agency] could reasonably reach, [and therefore] the trial court can direct the agency to take the action on remand.” (Citations omitted; internal quotation marks omitted.) United Jewish Center v. Brookfield, 78 Conn. App. 49, 63, 827 A.2d 11 (2003).

Although the record lacks substantial evidence to support the commission’s denial of the plaintiffs application, we are not convinced as a matter of law that approving the plaintiffs application is the only conclusion that the commission reasonably could reach. We therefore determine that this case involves the ordinary rule regarding remands in administrative appeals. The court should have remanded the case to the commission for further proceedings on the plaintiffs application.

The judgment is reversed only as to the order directing the commission to issue the permit and the case is remanded with direction to remand the case to the commission for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The other defendant in this case, the commissioner of environmental protection, is not a party to this appeal.


text:
    STATE OF CONNECTICUT v. JOEL C. KELLY
    (AC 26001)
    Schaller, DiPentima and McLachlan, Js.
    Considered April 2
    officially released June 5, 2007

      Richard E. Condon, Jr., assistant public defender, for the appellant (acquittee).

      John A. East III, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Vicki Melchiorre, senior assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

This case was argued on January 6, 2006, and an opinion was published setting forth the relevant facts, procedural history and applicable law. See State v. Kelly, 95 Conn. App. 31, 895 A.2d 801 (2006). In that opinion, we remanded the case for an articulation of the court’s basis for committing the acquittee, Joel C. Kelly, to the jurisdiction of the psychiatric security review board pursuant to General Statutes § 17a-582 and, specifically, to state whether at the time of the commitment hearing the acquittee presented a danger to himself or to others because of his psychiatric disability. We retained jurisdiction over the appeal.

The court filed its articulation on March 30, 2007. In its articulation, the court stated that on the basis of the evidence submitted at the commitment hearing, which included a written report and testimony of Mark S. Cotterell, a forensic psychiatrist employed at the Whiting Forensic Division of Connecticut Valley Hospital, where the acquittee was committed for initial evaluation and subsequent commitment, and supporting testimony from Peter M. Zeman, a psychiatrist with the Institute of Living Medical Group, P.C., it found that the acquittee had multiple mental health issues, had been resistant to his treatment program and lacked insight into his mental health issues. The court further stated that those findings supported its determination that the “acquittee was a person who suffered from psychiatric disabilities and serious mental illness and presented a danger to others caused by his psychiatric disability.”

We conclude that the court properly determined that the acquittee presented a danger to himself or to others because of his psychiatric disability, pursuant to § 17a-582, and therefore we find no plain error.

The judgment, as clarified by the trial court’s articulation filed on March 30, 2007, is affirmed.