text:
    STATE OF CONNECTICUT v. DIANA LISEVICK
    (AC 19472)
    Laveiy, C. J., and Foti and Daly, Js.
    Argued May 30
    officially released September 4, 2001

      Moira L. Buckley, deputy assistant public defender, with whom, on the brief, were Pamelas. Nagy, assistant public defender, and Kevin Ward and Eric Wolfgram, certified legal interns, for the appellant (defendant).

      Mitchell S. Brody, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Rachel M. Baird, former assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Diana Lisevick, appeals from the judgment of not guilty by reason of mental disease and defect, rendered after a trial to the court, of sexual assault in the first degree in violation of General Statutes § 53a-70 and impairing the morals of a child in violation of General Statutes (Rev. to 1995) § 53-21. On appeal, the defendant claims that the trial court improperly (1) allowed her to be involuntarily medicated, (2) denied her motion to compel the state to videotape all interviews with the minor victim and (3) allowed constancy of accusation witnesses to testify as to the details of the accuser’s statements in violation of State v. Troupe, 237 Conn. 284, 677 A.2d 917 (1996) (en banc). We affirm the judgment of the trial court.

The court either found or could have reasonably found the following facts. On November 3, 1995, during the morning, the defendant engaged in sexual intercourse with her six year old son. The sexual intercourse consisted of cunnilingus. During the same incident, the defendant had other sexual contact with the victim. The November 3, 1995 sexual assaults occurred at the request and for the purpose of the defendant’s sexual stimulation. The sexual assaults occurred at the victim’s home, where he and the defendant resided.

The court held, on the basis of those findings of fact, which were proven beyond a reasonable doubt, that the defendant had committed the crimes of sexual assault in the first degree in violation of § 53a-70 and impairing the morals of a child in violation of § 53-21.

At the time that the defendant committed those crimes, however, she suffered from schizophrenic affective disorder, a severe, chronic mental illness. The defendant suffered from severe distortions of reality that caused profound disturbances in her emotions and behavior. The defendant had been the victim of a traumatic rape and assault several years earlier, which enhanced her mental disorders. At that time, she suffered a serious head injury and the loss of an eye.

The defendant’s psychotic and delusional mental state, at the time that she committed the crimes, resulted in her inability to make any rational judgments. The defendant’s mental illness completely controlled her actions and thought processes.

On the basis of those findings, the court reasonably found by a preponderance of the evidence that, at the time the defendant committed the crimes, she lacked substantial capacity to appreciate the wrongfulness of her conduct. As a result, the defendant was unable to control her conduct within the requirements of the law. Additional facts will be set forth as they become relevant.

I

The defendant first contends that the court improperly concluded that the state satisfied its burden by clear and convincing evidence, under the first factor enumerated in State v. Garcia, 233 Conn. 44, 658 A.2d 947 (1995), on appeal after remand, 235 Conn. 671, 669 A.2d 573 (1996), when the court ordered her to be involuntarily medicated. That factor requires the state to demonstrate to a reasonable degree of medical certainty that involuntary medication of a defendant will render him or her competent to stand trial. We do not reach the merits of that claim.

The following facts are relevant to the resolution of this issue. Subsequent to the state’s filing an information charging the defendant with the crimes previously set forth, the defendant timely filed a proper motion for a competency examination. The court granted the defendant’s motion. On November 26,1996, after conducting a hearing, the court found that the defendant was not competent to stand trial. The court committed the defendant to the department of mental health for ninety days. Thereafter, the state filed a motion for the involuntary medication of the defendant. On March 19, 1997, after conducting a hearing, the court granted the motion. The defendant did not immediately file an interlocutory appeal from the court’s order.

In Garcia, our Supreme Court held that appellate jurisdiction was proper over an otherwise interlocutory appeal from a trial court’s order for involuntary medication. Id., 66; see also State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983) (general final judgment test for otherwise interlocutory appeals). In Garcia, our Supreme Court held that a trial court’s order for involuntary medication implicated the defendant’s liberty interest protected under the due process clause of the fourteenth amendment to the constitution of the United States. As a result, the Supreme Court permitted immediate appellate review.

“It is apparent from the record that in this case the defendant was fully aware of his right to an interlocutory appeal” of the court’s order for involuntary medication under Garcia. State v. Boutwell, 18 Conn. App. 273, 284, 558 A.2d 244, cert, denied, 212 Conn. 803, 561 A.2d 945 (1989). The defendant’s counsel relied on Garcia when he challenged the court’s order for involuntary medication. At the March 13, 1997 hearing, defense counsel addressed the court, stating: “Well, Your Honor, my concern is that the first requirement of Garcia is that the involuntary medication will render this defendant competent to stand trial and that needs to be based on a reasonable degree of medical certainty.” Moreover, the defendaat’s counsel stated that he was prepared to argue that under Garcia, a court could never order someone without a medical history regarding the use of medication to be involuntarily medicated. The court did not agree with the defense counsel and found sufficient evidence to satisfy Garcia's first factor.

Considering the defense counsel’s assertions, it is apparent that he was fully aware of the defendant’s right to an immediate interlocutory appeal. Garcia provides for immediate appellate review of an order to involuntarily medicate a defendant. Absent immediate review, a challenge to such an order will be effectively unreviewable. See footnote 9. In this case, the defendant’s failure to pursue such an appeal under Garcia resulted in her waiver of any claim on the basis of her liberty interest in freedom from being involuntarily medicated with antipsychotic medication.

The defendant argues that the court’s forced medication order is reviewable under Riggins v. Nevada, 504 U.S. 127, 112 S. Ct. 1810, 118 L. Ed. 2d 479 (1992). Riggins is inapposite. In Riggins, a defendant claimed that forced medication “denied him the ability to assist in his own defense . . . ,” Id., 131. As a result, the defendant in that case argued that the trial court denied him a fair trial. The defendant’s reliance on Riggins is misplaced.

Unlike the defendant in Riggins, the defendant in the present case does not claim lack of competency resulting from her having been forcibly medicated. In fact, on two occasions, the court found the defendant competent after she had been forcibly medicated. The defendant stipulated to her competency to stand trial at a June 11, 1997 competency hearing. On November 9, 1998, at a reevaluation hearing on the defendant’s competency, the defense counsel stated that “despite my misgivings I have to concede in candor to the court that [the treatment team’s report] is unequivocal that [the defendant] is competent and I have no evidence to the contrary .... Therefore, I have to concede that I don’t think we can show at this time that [the defendant is not] competent . . . .” Consequently, the court found the defendant to be competent.

II

The defendant next asserts what are in essence two distinct issues on appeal. First, the defendant contends that the court improperly denied her motion to compel the state to videotape all interviews with the victim and to make those videotapes available to the defense. Second, the defendant asks this court to invoke its supervisory authority to require the state, when conducting any interviews of children in matters involving their alleged sexual assault, to videotape and to disclose such videotapes to the defense. We disagree.

A

We first address the issue of whether the court improperly denied the defendant’s motion to compel the state to videotape all interviews with the victim. The following facts are relevant to our resolution of that claim. The record indicates that subsequent to the events that occurred on November 3,1995, communications between the victim and the state had taken place. Namely, the victim spoke with Stacy Major, a social worker for the department of children and families, as early as February 22,1996. At that time, the victim made allegations of sexual assault. There was no recording of that communication between Major and the victim. Subsequently, Major and Francis Sadlosky, an investigator for the department of children and families, interviewed the victim at his school on February 27, 1996. Sadlosky had a tape recording of that interview. On November 2, 1998, the defendant filed a motion for the recording of interviews. The court held a hearing on that motion on November 12, 1998. That same day, the prosecution planned to interview the victim. The defendant contended that the court should order that interview, and all interviews thereafter, to be videotaped. The court denied the motion.

The court held “that there’s [nothing] in the Connecticut Practice Book that authorizes this court to mandate that the interview to be conducted by the assistant state’s attorney of this child today prior to beginning the evidentiary portion of the trial and this court’s interpretation of [Practice Book § 40-14] . . . seems to this court that such an order by this court would be contrary to the expression of the Practice Book and specifically [Practice Book] § 40-14.”

“[T]he granting or denial of a discovery request rests in the sound discretion of the trial court. . . . [T]hat decision will be reversed only if such an order constitutes an abuse of that discretion.” (Citations omitted; internal quotation marks omitted.) Babcock v. Bridgeport Hospital, 251 Conn. 790, 820, 742 A.2d 322 (1999). We conclude that the court did not abuse its discretion.

In her brief, the defendant fails to argue that the court in fact abused its discretion in denying her motion. At the November 12, 1998 hearing, after considering the arguments, the court determined that it had no authority to order the procedure that the defendant sought. In this case, we agree with the court that Practice Book § 40-14 does not permit an order requiring the state to videotape interviews with the victim and then disclose such videotapes to the defense.

B

We now turn to the issue of whether the present case presents this court with a proper situation in which to exercise its supervisory authority. The defendant argues that “[t]here is evidence that children who complain of sexual abuse are susceptible to suggestion by an interviewer’s questioning, even though this effect is unintended.” Consequently, the defendant urges this court to invoke its supervisory authority to command the state, retroactively, to videotape all interviews with the victim and to make those videotapes available to the defense.

Our Supreme Court has stated that “[a]ppellate courts possess an inherent supervisory authority over the administration of justice. . . . [0]ur supervisory authority is not a form of free-floating justice, untethered to legal principle. . . . Rather, the integrity of the judicial system serves as a unifying principle behind the seemingly disparate use of our supervisory powers. . . . ([o]ur supervisory powers are invoked only in the rare circumstance where [the] traditional protections are inadequate to ensure the fair and just administration of the courts) . . . .” (Citations omitted; internal quotation marks omitted.) State v. Anderson, 255 Conn. 425, 438-39, 773 A.2d 287 (2001).

We hold that “[t]his case does not present an appropriate situation in which to exercise our supervisoiy authority.” Id., 439. There is no evidence in the record to support such an exercise of judicial power. The defendant points merely to the “possibility” of “taint” when a child alleging sexual assault is interrogated. The defendant cites sibling authority for her claim, but we are not persuaded by it.

The defendant relies on State v. Michaels, 136 N.J. 299, 642 A.2d 1372 (1994). In that case, the New Jersey Supreme Court recognized the real threat of manipulation of child testimony through the use of improper interrogation techniques. The court found that “[t]he interrogations undertaken in the course of [the Michaels] case utilized most, if not all, of the practices that are disfavored or condemned by experts, law enforcement authorities and government agencies.” Id., 313.

In Michaels, the court gave examples of the “obvious lack of impartiality on the part of the interviewer.” Id., 314. For instance, “[o]ne investigator, who conducted the majority of the interviews with the children, stated that his interview techniques had been based on the premise that the ‘interview process is in essence the beginning of the healing process.’ ” Id. The court noted that “[t]he record [was] replete with instances in which children were asked blatantly leading questions that furnished information the children themselves had not mentioned.” Id. Moreover, “[f]ifteen of the thirty-four children were told, at one time or another, that [the defendant] was in jail because she had done bad things to the children . . . .” Id., 315. The investigators told the children that they “needed their help and that they could be little detectives.” (Internal quotation marks omitted.) Id. Unlike the situation in Michaels, such pervasive dereliction of the interview process is not present in this case.

On the basis of the record, we are not now confronted with an “extraordinary case requiring this court to invoke its supervisory authority.” State v. Anderson, supra, 255 Conn. 441. The court agreed with the assistant state’s attorney that the policy reasons asserted by the defendant for a special exception mandating that prosecutors videotape or record certain witness statements are equally valid in many other cases, not only those involving children. We agree. To fashion an exception “would be inappropriate in the present case because it would not have sufficient boundaries to guide future trial courts. Rather, it would more likely create confusion as to the proper procedures to follow” regarding the interrogation of children alleging sexual assault. Id.

Ill

Finally, the defendant argues that the court improperly allowed constancy of accusation witnesses to testify about the details of the accuser’s statements in violation of State v. Troupe, supra, 237 Conn. 284. More specifically, the defendant argues that the court’s admission of such inadmissible details proved the essential elements of the state’s case, resulting in harm to the defendant. We do not agree.

The defendant contends that the court allowed the state to “parade inadmissible details into the trial under the guise of constancy evidence, when in reality, these details were used to corroborate the substance of [the victim’s] otherwise shaky testimony.” More specifically, the defendant argues that the court admitted testimony comprised of “more details than those necessary to connect [the victim’s] complaint to the charge . . . .” The record indicates otherwise.

The defendant objected to the testimony of both Sadlosky and Major. For instance, the defendant objected to Sadlosky’s testimony that “verbalize[d] the sounds [that the victim] made when imitating sounds the defendant allegedly made in response to the contact.” The court admitted, over defense counsel’s objection, “anatomical drawings on which [the victim] had circled the specific points of contact between himself and [the] defendant.” In addition, Major testified, over defense counsel’s objection, that the victim had told him that the defendant made him “touch her in — on her vagina, buttocks [and] breasts.”

The constancy of accusation doctrine, which provides an exception to the exclusionary hearsay rule, is deeply rooted in Connecticut common law. Id., 297. As a rule of evidence, “[i]n determining whether to permit [constancy of accusation] testimony, the trial court must balance the probative value of the evidence against any prejudice to the defendant.” (Internal quotation marks omitted.) State v. Torres, 60 Conn. App. 562, 573, 761 A.2d 766 (2000), cert, denied, 255 Conn. 925, 767 A.2d 100 (2001). “It is a fundamental rule of appellate review of evidentiary rulings that if [the] error is not of constitutional dimensions, an appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him.” (Internal quotation marks omitted.) State v. Kelly, 256 Conn. 23, 39, 770 A.2d 908 (2001); see also 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 60i. “Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Orhan, 52 Conn. App. 231, 238, 726 A.2d 629 (1999). Regardless of whether, in fact, the court violated Troupe's limitation on the admission of constancy of accusation testimony, we hold that the defendant has failed to show that such error, if it exists, resulted in “substantial prejudice or injustice.” (Internal quotation marks omitted.) Id.

The court had the benefit of the testimony from the victim, Sadlosky and Major. The court allowed Sadlosky to testify as to some of the details regarding his interview with the victim. Defense counsel objected. The court stated, “It seems to me, what Troupe doesn’t say, but is a necessary implication of that decision, is that the witness can give at least a minimal, general description of what the attack consisted of, [because], otherwise, it would not be a constancy of accusation of a particular kind of attack.”

We conclude that even if the court improperly admitted the challenged testimony, any error in that regard was of no consequence. In other words, even if the testimony was stricken from the record, the record would, nevertheless, remain sufficient to support the court’s judgment. For instance, in Orhan, we held it proper for a constancy of accusation witness to testify that the defendant “had touched [the victim’s] private parts while she was sleeping . . . the night before.” (Emphasis added; internal quotation marks omitted.) Id., 242.

In the present case, Sadlosky testified that the victim had told him that the defendant made him “touch” and “Mss” her “private parts.” As Orhan established, such testimony is within Troupe's parameters. Sadlosky’s testimony indicated only that the defendant “had touched the victim where [she] should not have” and, at the defendant’s request, that the victim had touched the defendant where and in a way he should not have. See id., 243. Sadlosky’s testimony, therefore, supports the victim’s direct testimony. Thus, the court could have used Sadlosky’s testimony in the only permissible way, to corroborate the victim’s direct testimony.

The court also heard Major’s testimony. On direct examination she testified that the victim told her that the defendant had made “him touch her in — on the vagina, buttocks and breast.” In response to defense counsel’s objection, the court cut off Major’s answer. The court agreed with defense counsel that Major’s testimony had made clear the general nature of the allegations and that anything farther would implicate Troupe.

Major’s mere use of the words “vagina,” “breasts” and “buttocks” is not impermissible. It is as if she used the term “private parts.” It is commonly understood that the term “private parts” refers to sexual organs. See Webster’s Ninth New Collegiate Dictionary (1986). Judicial preference for one term over another would serve merely to put form over substance. Our Supreme Court did not limit the exact terms a constancy of accusation witness could use in her testimony. See State v. Orhan, supra, 52 Conn. App. 243. Major’s testimony, therefore, was within the scope of permissible constancy of accusation testimony. The court used her testimony permissibly to corroborate the victim’s direct testimony.

Taken together, the testimony of Sadlosky and Major, absent the questionable details that the defense asserts on appeal, is sufficient to corroborate the victim’s direct testimony. The record, therefore, is sufficient to support the court’s judgment. Any evidence that the court might have admitted in contravention of Troupe's limitations was harmless and did not affect the outcome of the case. The defendant, therefore, has failed to show substantial prejudice or injustice.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court’s judgment of not guilty by reason of mental disease or defect, on the basis of the court’s findings of fact, accords with General Statutes § 53a-13 (a), which provides: “In any prosecution for an offense, it shall be an affirmative defense that the defendant, at the time he committed the proscribed act or acts, lacked substantial capacity, as result of mental disease or defect, either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law.”
      The court committed the defendant to the custody of the commissioner of mental health and addiction services for an examination in accordance with General Statutes § 17a-582 (a), which provides in relevant part: “When any person charged with an offense is found not guilty by reason of mental disease or defect pursuant to section 53a-13, the court shall order such acquittee committed to the custody of the Commissioner of Mental Health and Addiction Services who shall cause such acquittee to be confined, pending an order of the court pursuant to subsection (e) of this section, in any of the state hospitals for psychiatric disabilities ... for an examination to determine his mental condition.”
      After the court rendered its finding, it continued the case for sixty days to satisfy the statutory mandates of § 17a-582. On March 10, 1999, the court committed the defendant to the custody of the psychiatric security review board for a period of not less than ten years.

       Practice Book § 42-34 provides: “In a case tried without ajury the judicial authority shall render a finding of guilty, not guilty, or not guilty by reason of mental disease or defect where appropriate.”

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person ... (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person . . .

       General Statutes (Rev. to 1995) § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       The defendant properly appeals to this court from the court’s judgment of not guilty by reason of mental disease or defect. See State v. Connelly, 46 Conn. App. 486, 495, 700 A.2d 694 (1997), cert, denied, 244 Conn. 907, 908, 713 A.2d 829, cert, denied, 525 U.S. 907, 119 S. Ct. 245, 142 L. Ed. 2d 201 (1998).

        Garcia set forth five factors that must be satisfied for “a court to authorize the involuntary medication of an incompetent defendant to render him competent to stand trial . . . .” State v. Garcia, supra, 233 Conn. 84-86.
      The defendant also argues that the state failed to satisfy the other four Garcia factors. The defendant failed to preserve properly such claims at the trial level. The defendant asserts that her unpreserved claims are entitled to review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). For the reasons stated in this opinion, we do not reach the question of whether such review is warranted.

       In Connecticut, a claim that forced medication denies a defendant the ability to assist in his or her own defense would be made pursuant to General Statutes § 54-56d (a), which provides: “A defendant shall not be tried, convicted or sentenced while he is not competent. For the purposes of this section, a defendant is not competent if he is unable to understand the proceedings against him or to assist in his own defense.”

       The defendant’s stipulation of competency occurred nearly three months after involuntary medical treatment had commenced.

       Even if we assume arguendo that the defendant’s claim is renewable, a decision in the litigant’s favor is not capable of redressing her grievance. The court’s order is effectively unreviewable. See United States v. Morgan, 193 F.3d 252, 259 (4th Cir. 1999). The defendant already has been forcibly medicated, been determined competent on two occasions, and tried and found not guilty because of mental disease or defect.
      Given the facts in this case, once the state infringed on the defendant’s liberty interest in being free from involuntary medication, “the defendant’s personal rights cannot be restored.” State v. Garcia, supra, 233 Conn. 66. Our review of the court’s findings in that regard would amount to “a purely academic exercise.” United States v. Morgan, supra, 193 F.3d 259. The issue, therefore, is moot.
      In addition, as she asserts in her reply brief, the defendant seeks review under an exception to the mootness doctrine. See Stamford Hospital v. Vega, 236 Conn. 646, 653-54, 674 A.2d 821 (1996). We do not reach the merits of that claim because “[i]t is a well established principle that arguments cannot be raised for the first time in a reply brief.” (Internal quotation marks omitted.) Williams Ford, Inc. v. Hartford Courant, Co., 232 Conn. 559, 593 n.26, 657 A.2d 212 (1995).

       Practice Book § 40-14 provides in relevant part: “Subject to Section 40-13 and except for the substance of any exculpatory material contained herein, Sections 40-11 through 40-14 does not authorize or require disclosure or inspection of:
      “(1) Reports, memoranda or other internal documents made by a prosecuting authority or by law enforcement officers in connection with the investigation or prosecution of the case;
      “(2) Statements made to prosecuting authorities ....
      “(4) Records, correspondence, reports or memoranda to the extent that they contain the opinions, theories or conclusions of a prosecuting authority.”

       In State v. Troupe, supra, 237 Conn. 304, our Supreme Court held that “a person to whom a sexual assault victim has reported the assault may testify only with respect to the fact and timing of the victim’s complaint; any testimony by the witness regarding the details surrounding the assault must be strictly limited to those necessary to associate the victim’s complaint with the pending charge, including, for example, the time and place of the attack or the identity of the alleged perpetrator.”
      In State v. Orhan, 52 Conn. App. 231, 243, 726 A.2d 629 (1999), we held that “[t]he controlling language from Troupe does not limit the identifying information that may be provided. It limits only the extent of the information provided. Our Supreme Court merely gave examples of how a sexual assault might be identified; it did not hold that that was the only testimony that could be provided.”

        Troupe limits the use of constancy of accusation testimony. “Thus, such evidence is admissible only to corroborate the victim’s testimony and not for substantive purposes.” State v. Troupe, supra, 237 Conn. 304.

       Over defense counsel’s objections, the court admitted photographs that Sadlosky had spread on a table while he was interviewing the victim. The victim picked out the photographs that appeared as his mother and pointed to the areas that his mother had forced him to touch.

       There is sufficient testimony from the victim, Sadlosky and Major to support the court’s judgment. At trial, the victim gave direct testimony concerning the sexual assaults. The victim testified on direct examination in relevant part as follows:
      “[Prosecutor]: Did your mom say anything to you?
      “[Victim]: No.
      “[Prosecutor]: What exactly did she do when she — how did she put you in your room?
      “[Victim]: She pulled me by my arm and put me in my room.
      “[Prosecutor]: And where did you go when you went into your room?
      “[Victim]: She pushed me on my bed.
      “[Prosecutor]: Did you — did you — how were you dressed?
      “[Victim]: I had my underwear and my T-shirt on.
      “[Prosecutor]: And how was your mom dressed?
      “[Victim]: She had a bathrobe on.
      “[Prosecutor]: And what happened next.
      “[Victim]: She sexually abused me.
      “[Prosecutor]: Now, what — how—what, exactly, did she do next, in terms of your observations?
      “[Victim]: She would make me rub her vagina, touch her breast. And she— would do stuff to me. And I would have to do it to her.
      “[Prosecutor]: What happened when you pulled down your pants?
      “[Victim]: She — she—she just started to rub me. And then, after that, she would pull down her — her—she would take off her bathrobe and she would make me touch her vagina, her breast.”
      As part of the prosecution’s case-in-chief, the state called Sadlosky to the witness stand. Absent the testimony challenged in this appeal, Sadlosky’s testimony adequately served to corroborate the victim’s direct testimony. Sadlosky testified in relevant part:
      “[Prosecutor]: After [the victim] had picked out the pictures . . . what did you next ask him in the interview?
      “[Witness]: [The victim] had told me that his mother made him touch her private parts. Kiss [her] private parts. So, I asked him what — if he knew the names of the private parts. And he would give me names like breast and— and vagina and butt — butt.
      “[Defense Counsel]: This is far outside what is permissible under Troupe now that Troupe might as well never have been decided. . . .”
      The court overruled the objection, but cautioned the prosecutor that she was approaching Troupe’s limits. Subsequently, Major testified. Her testimony was similar to Sadlosky’s and further supported the victim’s allegations.


source: Caselaw Access Project

author: LANDAU, J.

license: Public Domain

text:
    CHRISTINE LATHURAS v. SHORELINE DENTAL CARE, LLC, ET AL.
    (AC 21025)
    Landau, Mihalakos and Shea, Js.
    Argued May 30
    officially released September 11, 2001

      William F. Gallagher, with whom, on the brief, were Hugh D. Hughes and VincentN. Amendola, Jr., for the appellants (defendants).

      Scott S. Centrella, with whom, on the brief, was James P. Blanchfield, for the appellee (plaintiff).
   Opinion

LANDAU, J.

The defendants, Shoreline Dental Care, LLC (Shoreline), and Joseph Tartagni, appeal from the judgment of the trial court denying the defendants’ application to vacate an arbitration award rendered in favor of the plaintiff, Christine Lathuras, and granting the plaintiffs motion to confirm the award. On appeal, the defendants claim that the court improperly failed to conclude that (1) the arbitrator’s award of double damages and attorney’s fees pursuant to General Statutes § 31-72 was in manifest disregard of the law and (2) the arbitrator manifestly disregarded the law of contracts by failing to consider the plaintiffs alleged failure to mitigate damages. We disagree and affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. The defendants employed the plaintiff as a dentist pursuant to a written employment agreement (agreement) that the parties executed on November 3, 1997. The agreement set forth the terms and conditions of the plaintiffs employment with Shoreline and was, by its own terms, effective as of June 2, 1997.

Tartagni terminated the plaintiffs employment effective November 4,1998. On January 5,1999, the plaintiff commenced an action against the defendants, alleging breach of contract and wrongful withholding of wages, in this case, contractual notice pay, in violation of General Statutes §§ 31-71a to 31-71Í. On June 21, 1999, the court granted the defendants’ motion to stay the proceedings pending arbitration. The defendants subsequently submitted a voluntary and unrestricted demand for arbitration pursuant to the terms of the agreement. On May 12, 2000, the arbitrator issued her award. The arbitrator found that (1) the plaintiff was entitled to her lost earnings for the ninety day notice period, (2) Shoreline had unreasonably failed to compensate her for those earnings in violation of § 31-72 and (3) as a result of Shoreline’s failure to compensate the plaintiff for those earnings, the plaintiff was entitled to double damages and attorney’s fees. Accordingly, the arbitrator awarded the plaintiff $46,656.57 in damages and $20,000 in attorney’s fees, for a total award of $66,656.57.

The defendants filed an application to vacate the award, and the plaintiff filed a motion to confirm the award. The trial court concluded that the issues raised by the defendants, and claimed to be error, were within the bounds of the parties’ submission and were not evidence of the arbitrator’s allegedly manifest disregard of the law. Accordingly, the court denied the defendants’ application to vacate the award and granted the plaintiffs motion to confirm the award. This appeal followed. Additional facts will be addressed as needed.

“The scope of review by the court of an arbitrator’s power to make an award is limited. Arbitration is a creature of contract between the parties and its autonomy requires a minimum of judicial intrusion. . . . The parties themselves, by the agreement of the submission, define the powers of the arbitrator. . . . The submission constitutes the charter of the entire arbitration proceedings and defines and limits the issues to be decided. . . . When the parties have agreed to a procedure and have delineated the authority of the arbitrator, they must be bound by those limits. . . . An application to vacate or correct an award should be granted where an arbitrator has exceeded his power. In deciding whether an arbitrator has exceeded his power, we need only examine the submission and the award to determine whether the award conforms to the submission.

“In determining whether a submission is unrestricted, we look at the authority of the arbitrator. The authority of an arbitrator to adjudicate the controversy is limited only if the agreement contains express language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review. In the absence of such qualifications, an agreement is unrestricted. . . .

“Even in the case of an unrestricted submission, we have, however, recognized three grounds for vacating an award: (1) the award rules on the constitutionality of a statute ... (2) the award violates clear public policy ... or (3) the award contravenes one or more of the statutory proscriptions of [General Statutes] § 52-418.” (Citations omitted; internal quotation marks omitted.) Hartford v. International Assn. of Firefighters, Local 760, 49 Conn. App. 805, 811-12, 717 A.2d 258, cert, denied, 247 Conn. 920, 722 A.2d 809 (1998).

Our courts have held that claims of manifest disregard of the law fall within the statutory proscription of § 52-418 (a) (4). “[A]n award that manifests an egregious or patently irrational application of the law is an award that should be set aside pursuant to § 52-418 (a) (4) because the arbitrator has exceeded [his] powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made. . . . [T]he manifest disregard of the law ground for vacating an arbitration award is narrow and should be reserved for circumstances of an arbitrator’s extraordinary lack of fidelity to established legal principles.” (Internal quotation marks omitted.) Garrity v. McCaskey, 223 Conn. 1, 10, 612 A.2d 742 (1992).

Our Supreme Court has adopted the test established by the United States Court of Appeals for the Second Circuit in interpreting the federal equivalent of § 52-418 (a) (4). Saturn Construction Co. v. Premier Roofing Co., 238 Conn. 293, 305, 680 A.2d 1274 (1996), citing Garrity v. McCaskey, supra, 223 Conn. 8; Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bobker, 808 F.2d 930, 933-34 (2d Cir. 1986). “The test consists of the following three elements, all of which must be satisfied in order for a court to vacate an arbitration award on the ground that the [arbitrator] manifestly disregarded the law: (1) the error was obvious and capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator; (2) the [arbitrator] appreciated the existence of a clearly governing legal principle but decided to ignore it; and (3) the governing law alleged to have been ignored by the [arbitrator] is well defined, explicit, and clearly applicable.” Saturn Construction Co. v. Premier Roofing Co., supra, 305.

I

The defendants’ first claim is that the court improperly failed to conclude that the arbitrator’s award of double damages and attorney’s fees pursuant to § 31-72 was in manifest disregard of the law. See General Statutes § 52-418 (a) (4). We disagree.

Section 31-72 authorizes the award of double damages and attorney’s fees under circumstances where an employer has failed to pay an employee wages. In support of their position, the defendants cite several cases that narrow the definition of “wages” under the statute to payment for services rendered once these payments have accrued, and proscribe the statute’s applicability for the mere loss of wages. None of the cases relied upon by the defendants, however, specifically address the applicability of § 31-72 to contractual notice pay.

“ ‘[Courts] are not at liberty to set aside an [arbitrator’s] award because of an arguable difference regarding the meaning or applicability of laws urged upon it.’ ” Garrity v. McCaskey, supra, 223 Conn. 9, quoting Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bobker, supra, 808 F.2d 934. Even if an arbitrator misapplies the relevant law, “such a misconstruction of the law [does] not demonstrate the [arbitrator’s] egregious or patently irrational rejection of clearly controlling legal principles.” Garrity v. McCaskey, supra, 11-12. We cannot say that the issue before the arbitrator was so well defined and explicit as to command only one logical conclusion, or that the interpretation adopted by the arbitrator was so egregious as to border on the irrational.

Moreover, “[i]n reviewing arbitrators’ decisions, manifest disregard of the law may be found only where the arbitrators understood and correctly stated the law but proceeded to ignore it.” (Internal quotation marks omitted.) Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bobker, supra, 808 F.2d 937 (Meskill, J., concurring). Thus, even if we were to conclude that the relevant provisions of § 31-72 are well defined, explicit and clearly applicable, we could not conclude that the arbitrator appreciated, but ignored them. To prevail on its application to vacate an arbitration award pursuant to § 52-418 (a) (4), a party must show that the arbitrator knew that her award was contrary to the law. Saturn Construction Co. v. Premier Roofing Co., supra, 238 Conn. 305.

In the case before us, the trial court concluded that the defendants had not demonstrated anything more than a disagreement with the arbitrator’s interpretation and application of established legal principles. Thus, the trial court’s confirmation of the arbitration award was proper.

II

The defendants next claim that the court improperly concluded that the arbitrator had not manifestly disregarded the law by failing to reduce the plaintiffs award in consideration of the plaintiffs failure to mitigate damages. We are unpersuaded.

As previously discussed, in analyzing a claim that an arbitration award is in manifest disregard of the law, we are guided by the factors set forth in Garrity. The moving party must show not only that the arbitrator appreciated the existence of a well defined, explicit and clearly applicable legal principle, but also that she deliberately ignored the governing law. Garrity v. McCaskey, supra, 223 Conn. 9. To issue an award with manifest disregard of the law, the arbitrator must have (1) known that the law required the plaintiff to mitigate damages and (2) ignored relevant evidence to that effect. See Saturn Construction Co. v. Premier Roofing Co., supra, 238 Conn. 308; Garrity v. McCaskey, supra, 11-12.

The only basis for the defendants’ assertion that the arbitrator failed to consider mitigation of damages is the absence of any explicit discussion of the doctrine in the award. The defendants contend that the arbitrator’s failure to discuss the mitigation claim is evidence of her failure to consider that claim. Yet, the arbitration award states that all claims not specifically addressed in the award had been considered and rejected.

Whether the arbitrator correctly applied the law with respect to mitigation of damages, however, is irrelevant for purposes of our review. “When the scope of the submission is unrestricted, the resulting award is not subject to de novo review even for errors of law so long as the award conforms to the submission.” (Internal quotation marks omitted.) Saturn Construction Co. v. Premier Roofing Co., supra, 238 Conn. 304. The defendants’ arguments have not established anything beyond the fact that the arbitrator may have misapplied the law. Mere error of law does not rise to the level of “ ‘manifest disregard.’ ” Garrity v. McCaskey, supra, 223 Conn. 9. The trial court, therefore, properly denied the defendants’ application to vacate the award and properly granted the plaintiffs motion to confirm the award.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 31-72 provides in relevant part: “When any employer fails to pay an employee wages in accordance with the provisions of sections 31-71a to 31-71Í, inclusive . . . such employee . . . may recover, in a civil action, twice the full amount of such wages, with costs and such reasonable attorney’s fees as may be allowed by the court . . . .”

       Paragraph 3.2 of the parties’ employment agreement states: “After the expiration of twelve (12) months from the Effective Date, either party may terminate this Agreement without cause by notifying the other party in writing ninety (90) days before the effective date of termination.”

       Paragraph ten of the parties’ employment agreement states in relevant part: “Any controversy between the parties involving the construction or application of any of the terms, provisions or conditions of this Agreement, shall on the written request of either party served on the other, be submitted to binding arbitration before a neutral third party under the auspices of the American Arbitration Association in New Haven County, Connecticut. . . .”

       General Statutes § 52-418 (a) provides in relevant part: “Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides . . . shall make an order vacating the award if it finds any of the following defects ... (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter was not made.”

       We note that, because the parties agreed to a short form award without a transcript, it is unclear what evidence, if any, was presented to the arbitrator with respect to mitigation of damages.


author: DALY, J.

text:
    STATE OF CONNECTICUT v. RAYMOND BRIDGES
    (AC 19589)
    Mihalakos, Flynn and Daly, Js.
    Argued May 1
    officially released September 11, 2001

      Damon A. R. Kirschbaum, for the appellant (defendant).

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, were Mary M. Galvin, state’s attorney, and Michael J. Weber, Jr., senior assistant state’s attorney, for the appellee (state).
   Opinion

DALY, J.

The defendant, Raymond Bridges, appeals from the judgment of conviction, rendered after a jury trial, of burglary in the third degree in violation of General Statutes § SSa-lOS and larceny in the third degree in violation of General Statutes § 53a-124. The defendant claims that the trial court (1) improperly excluded the testimony of his investigator concerning the accessibility of the area where the defendant’s fingerprint was found and (2) deprived the defendant of his constitutional right to present a defense. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In October, 1993, Ann DeFllippo owned and operated the Lighthouse Book and Gift Shop (shop) located at 188 New Haven Avenue in Milford. The shop’s retail area, which sells, among other things, religious books, gifts, cards, compact discs and cassettes, is on the first floor of a two story residential building. The retail area is accessed by entering the building through the front door and turning right through an open door into a room where the shop’s merchandise is displayed. The second floor consists of an office, a kitchen, a storage room and a bridal room. To access the second floor, a person would enter through the front door, walk past the retail area to the banister, turn right and walk upstairs. There is a sliding door at the top of the stairs that is usually kept closed. The second floor is not open to the general public, except for the bridal area, which is open to the public only by appointment and when a shop escort is present.

On Monday morning, October 4, 1993, Officer Robert Nash of the Milford police department was dispatched to the shop to investigate a reported burglary. When Nash arrived, DeFilippo reported to him that she had closed the shop at 5:30 p.m. on Saturday, October 2, and had not returned until she came to open it Monday morning. Upon investigation of the first floor, Nash observed that the shop’s rear door had been forcibly opened and that various items were scattered on the floor near the cash register. On the second floor, Nash noticed that in the office area desk drawers had been pulled out, two stereo equipment boxes had been opened and a Plexiglas shelf was on a chair. A compact disc player and a stereo receiver were missing from the open boxes. Several compact discs, watches and lings were also missing from the shop. In total, approximately $2000 in merchandise was missing.

Detective Raymond Smith of the Milford police department arrived to process the crime scene. He asked DeFilippo to show him everything that had been disturbed in the shop. DeFilippo brought Smith to the office on the second floor and showed him the Plexiglas shelf on the chair. She explained that she had placed the shelf on top of the stereo equipment boxes before closing the shop on Saturday and that, during the burglary, it had been moved to the chair to gain access to the boxes. Smith dusted the Plexiglas shelf for latent fingerprints, and the defendant’s fingerprint was found. The defendant was subsequently arrested and charged with burglary in the third degree and larceny in the third degree.

At trial, the defendant sought to present the testimony of his investigator, Tom Candia, to contradict DeFilippo’s testimony concerning the accessibility of the area where the defendant’s fingerprints were found, namely, that the door to the first floor retail area was kept open, the second floor sliding door was usually kept closed and a person could not access the second floor without being noticed by shop personnel. In an offer of proof outside the presence of the jury, Candia testified that in late December, 1993, or early January, 1994, he went to the shop to view the crime scene. Candia testified that he entered the shop, noticed that the door to the first floor retail area was closed and proceeded to walk upstairs to the second floor where he found the sliding door open. Candia further testified that upon reaching the top of the stairs, he immediately returned to the first floor to obtain Defilippo’s permission to view the crime scene.

After hearing argument on the issue of admissibility, the court granted the state’s motion in limine and excluded Candia’s testimony on the grounds that (1) the circumstances that existed when Candia visited the shop in late December, 1993, or early January, 1994, were irrelevant with respect to the circumstances that existed in early October, 1993, and (2) the testimony did not indicate that the second floor was generally accessible to the public. The jury found the defendant guilty on April 8, 1994, and no direct appeal was taken from the judgment. The defendant filed a petition for a writ of habeas corpus, seeking to have his appellate rights restored. On April 30, 1999, the habeas court, pursuant to a stipulation between the parties, restored the defendant’s appellate rights. This appeal followed.

I

The defendant first claims that the court improperly excluded the testimony of his investigator, Candia, concerning the accessibility of the area where the defendant’s fingerprint was found. We disagree.

Our analysis begins with the appropriate standard of review. “Our standard of review for evidentiary matters allows the trial court great leeway in deciding the admissibility of evidence. The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done. . . . The exercise of such discretion is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law.” (Internal quotation marks omitted.) Bunting v. Bunting, 60 Conn. App. 665, 670, 760 A.2d 989 (2000). “Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” (Internal quotation marks omitted.) State v. Provost, 251 Conn. 252, 257, 741 A.2d 295 (1999), cert, denied, 531 U.S. 822, 121 S. Ct. 65, 148 L. Ed. 2d 30 (2000); see also 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 35, p. 159.

In the present case, the only evidence connecting the defendant to the crimes charged was a single fingerprint found on a Plexiglas shelf in the second floor office area. “[A] conviction may not stand on fingerprint evidence alone unless the prints were found under such circumstances that they could only have been impressed at the time the crime was perpetrated. . . . [W]here a conviction rests solely on fingerprint evidence, the proof must demonstrate not only that at some time the defendant . . . touched objects found at the scene of the crime, but also that the objects were generally inaccessible to the defendant . . . and that therefore the objects were probably touched during the commission of the crime.” (Citations omitted; internal quotation marks omitted.) State v. Coleman, 35 Conn. App. 279, 294, 646 A.2d 213, cert, denied, 231 Conn. 928, 648 A.2d 879 (1994).

The defendant argues that the court should have permitted him to present Candia’s testimony to put into dispute whether the fingerprint was made at the time of the crime and whether the office area where the fingerprint was found was generally inaccessible to the defendant. “Testimony of conditions after the happening of an event is relevant to show conditions at the time of the event if the conditions are of such a permanent character that a lapse of time would not make a material difference.” (Internal quotation marks omitted.) Spoto v. Hayward Mfg. Co., 2 Conn. App. 663, 671, 482 A.2d 91 (1984). “[WJhere the situation is transitory in nature, such evidence should not be admitted without proof ... of the similarity of conditions.” (Internal quotation marks omitted.) Johnson v. Newell, 160 Conn. 269, 276, 278 A.2d 776 (1971). “The trial court has broad discretion to determine both the relevancy and remoteness of evidence.” (Internal quotation marks omitted.) Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 264, 694 A.2d 1319 (1997).

The accessibility of the shop’s second floor is transitory in nature because, under the facts of this case, the positioning of shop fixtures, such as whether the door to the retail area is open, are temporary conditions that are readily subject to change. Therefore, to establish the relevance of Candia’s testimony, it was incumbent on the defendant to make a preliminary showing that the conditions that existed when Candia visited the shop in late December, 1993, or early January, 1994, were sufficiently similar to the conditions that existed in early October, 1993. See Johnson v. Newell, supra, 160 Conn. 276; see also State v. Cintron, 39 Conn. App. 110, 117, 665 A.2d 95 (1995).

In the present case, the defendant failed to establish a foundation for the relevance of Candia’s testimony. As the court noted, “[T]here’s nothing in the record, nothing was asked of [DeFilippo] whether or not as the weather gets colder, they do something different with the doors. . . . [S]he wasn’t asked — she gave — indicated what the situation was [in early October], and it might be easier for me to deal with that aspect of the thing if there had been some questions, specifically— was that, in fact, your practice in December [and] January? There’s just nothing ... to support that . . . the circumstances that existed on October 4 were the same circumstances that existed in late December or early January.” Absent a proper foundation, Candia’s testimony concerning the position of fixtures and the accessibility of the second floor when he visited the shop in late December, 1993, or early January, 1994, is too remote and irrelevant with respect to the conditions that existed in early October, 1993.

In addition, Candia’s testimony is not relevant as to whether the office area where the defendant’s fingerprint was found was generally accessible to the defendant. An area is not generally accessible simply because there is a remote possibility that a person may access that area. See State v. Thorpe, 188 Conn. 645, 649, 453 A.2d 88 (1982); see also State v. Coleman, 42 Conn. App. 78, 84, 679 A.2d 950 (1996), rev’d on other grounds, 241 Conn. 784, 699 A.2d 91 (1997). The fact that on one occasion in late December, 1993, or early January, 1994, Candia managed to access the shop’s second floor unnoticed does not tend to support the conclusion that the office area was generally accessible to the defendant. This is especially true in light of the fact that the defendant presented no evidence that he ever had been on the premises. We therefore conclude that the court did not abuse its discretion in excluding Candia’s testimony.

II

In addition to his evidentiary claim, the defendant also claims that by excluding Candia’s testimony, the court deprived him of his right to present a defense in violation of the sixth and fourteenth amendments to the United States constitution. We are not persuaded.

Although the defendant concedes that he did not raise his constitutional claim at trial, he maintains that it is reviewable pursuant to State v. Golding, 213 Conn 233, 239-40, 567 A.2d 823 (1989). We conclude that the defendant’s claim is not reviewable under Golding because it is not of constitutional magnitude, and, therefore, it fails to satisfy the second prong of Golding.

“The constitutional right to present a defense does not include the right to introduce any and all evidence claimed to support it. . . . The trial court retains the power to rule on the admissibility of evidence pursuant to traditional evidentiary standards.” (Citation omitted.) State v. Shabazz, 246 Conn. 746, 752-53 n.4, 719 A.2d 440 (1998), cert, denied, 525 U.S. 1179, 119 S. Ct. 1116, 143 L. Ed. 2d 111 (1999). “The defendant has no right to present evidence that is not admissible according to the rules of evidence . . . .” State v. Rodriguez, 60 Conn. App. 398, 404, 759 A.2d 123 (2000), cert, denied, 255 Conn. 928, 767 A.2d 103 (2001). “Relevancy is an evidentiary question and [e]very evidentiary ruling which denies a defendant a line of inquiry to which he thinks he is entitled is not constitutional error.” (Internal quotation marks omitted.) State v. Jenkins, 56 Conn. App. 450, 455, 743 A.2d 660, cert, denied, 252 Conn. 947, 747 A.2d 523 (2000). We conclude that the defendant’s claim is not of constitutional magnitude and we, therefore, decline to review it.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-103 (a) provides: “A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein.”

       General Statutes § 53a-124 (a) provides in relevant part: “A person is guilty of larceny in the third degree when he commits larceny, as defined in section 53a-119, and ... (2) the value of the property or service exceeds one thousand dollars . . . .”
      General Statutes § 53a-119 provides in relevant part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. ...”

       “Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter.” (Internal quotation marks omitted.) State v. Turner, 62 Conn. App. 376, 384, 771 A.2d 206 (2001).

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


author: LAVERY, C. J.

text:
    ADIL MULLA v. JAMES P. MAGUIRE, JR., ET AL.
    (AC 20861)
    Lavery, C. J., and Mihalakos and Peters, Js.
    Argued April 5
    officially released September 11, 2001

      Stephen R. Griffin, for the appellant (plaintiff).

      Marcus G. Organschi, for the appellees (defendants).
   Opinion

LAVERY, C. J.

The plaintiff appeals from the summary judgment rendered in favor of the defendants in this action to quiet title. The plaintiff claims on appeal that the court improperly granted the defendants’ motion for summary judgment on the basis of its holding that the plaintiffs right-of-way over the defendant’s land had been extinguished by a 1989 quitclaim deed and, further, that the court improperly denied the plaintiffs request for an injunction to prevent the defendant from interfering with the plaintiffs use of that right-of-way. We reverse the judgment of the trial court.

The record reveals the following relevant facts, which the parties do not dispute. The parties are the owners of adjoining parcels of land in the town of Warren. The plaintiffs land (Mulla property) lies to the north and east of the defendant’s land (Maguire property). The disputed right-of-way runs northeast from Melius Road, where that road passes through the Maguire property, through the eastern portion of the Maguire property to a quarry on the Mulla property.

The relevant portion of the chain of title of the Maguire property is as follows. On October 26,1942, Richard Morgan, as executor of the estate of Emily Morgan, conveyed the Maguire property to James P. Maguire, Sr., and Huldah Johnson Maguire, the parents of the defendant, by an executor’s deed that explicitly reserved to the grantor, his heirs, successors and assigns, the aforementioned right-of-way. On September 11, 1970, Huldah Johnson Maguire, by then the owner of the fee, conveyed the property to the defendant via quitclaim deed. On July 31,1974, the defendant conveyed the property to himself and Catherine Maguire, in joint tenancy, by quitclaim deed. On August 28, 1986, the Maguires conveyed the property to themselves as trustees, to be held in trust for their children, by quitclaim deed.

The relevant portion of the chain of title of the Mulla property is as follows. On May 12, 1944, the estate of Richard Morgan conveyed the Mulla property to Robert Cashion and Edna Cashion by executor’s deed, and on December 26,1959, the Cashions conveyed the property to their corporation, Windy Ridge, Inc. (Windy Ridge), by warranty deed. On July 10, 1995, the plaintiff acquired the property from Windy Ridge by warranty deed. Each of those three deeds explicitly included a reference to the right-of-way over the Maguire property.

In 1989, while Windy Ridge still owned the Mulla property, Robert Cashion had it surveyed by Richard Adams and found that there were uncertainties regarding its exact boundaries with the various neighboring properties. Cashion obtained the defendant’s agreement that the boundaiy lines as shown on Adams’ survey map were accurate, and drafted and executed a quitclaim deed (1989 deed), whereby Windy Ridge granted to the Maguires all “right, title and interest of the Grantor, if any, to the premises lying Westerly and Southerly of the hereinafter described lines,” i.e., the border as shown on the map. The 1989 deed made no attempt to describe the Maguire property in particular metes and bounds, just the boundary line. The deed specifically referenced Adams’ survey map by name and date of preparation, and concluded with a clause stating that “[t]he intention of this deed is to establish the above-referenced lines as the boundary line between the Grantor’s and the Grantee’s property.”

At approximately the same time, the Maguires also executed a quitclaim deed, granting to Windy Ridge “all the right, title, interest, claim and demand whatsoever as [they] have or ought to have in” the Mulla property as shown on Adams’ survey map. The deed did not describe the Mulla property with any more specificity. The deed also referenced the map by name and date of preparation, and noted that the “map is to be filed in the office of the Town Clerk of the Town of Warren, to which reference may be had.” The two deeds were executed in July and August, 1989, respectively. When the deeds were agreed to and executed, there was no discussion between Robert Cashion and the Maguires regarding the right-of-way.

Windy Ridge arranged for similar exchanges of deeds with two other neighboring property owners so as to establish clearly other parts of the boundary line for the Mulla property. Those deeds contained the same specific boundary line descriptions, general parcel descriptions, references to the survey map, and intent to establish the boundary line clauses as did the deeds exchanged between Windy Ridge and the Maguires.

The survey map prepared by Adams and referenced by the deeds shows the disputed right-of-way where it crosses from the Mulla property to the Maguire property. In the lower left portion of the map is a “Notes” section. One of the notes reads, “Refer to Right-of-way — Volume 23 Page 119 of the Warren Land Records.” That citation references the part of the 1944 deed from the Morgan estate to the Cashions, wherein the right-of-way is defined.

In 1996, the defendant observed the plaintiff on the disputed right-of-way and asked him what he was doing. The plaintiff replied that he believed he was entitled to use the right-of-way by virtue of his deed. Subsequently, when the plaintiff attempted to use the right-of-way, he found it blocked by boulders, a telephone pole and a car.

The plaintiff commenced an action seeking damages and an injunction to prevent the defendant from interfering with the plaintiffs use of the right-of-way. The Maguires filed a counterclaim to determine the respective rights of the parties to the disputed right-of-way and to quiet title. The parties each filed motions for summary judgment, and submitted to the court copies of the relevant deeds and maps, correspondence, depositions and the plaintiffs affidavit along with their memoranda of law. The court, after hearing argument on the motions, rendered summary judgment in favor of the defendant, holding that the 1989 deed from Windy Ridge to the Maguires operated to extinguish Windy Ridge’s interest in the right-of-way and, therefore, that Windy Ridge could not have conveyed the right-of-way to the plaintiff. This appeal followed. Additional facts will be provided as necessary.

The plaintiff claims that the court, in rendering summary judgment for the defendant, improperly construed the 1989 deed executed by Windy Ridge as extinguishing the right-of-way over the Maguire property. He argues that the intent of the parties in exchanging the deeds was only to establish the boundary line between their properties and that the deed should be construed so as to effectuate that intent. We agree with the plaintiff.

“Our standard of review of a court’s decision to grant a motion for summary judgment is well established. Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Citation omitted; internal quotation marks omitted.) Saunders v. Stigers, 62 Conn. App. 138, 145, 773 A.2d 971 (2001).

“On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Because the court rendered judgment for the [defendants] as a matter of law, our review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear' in the record. ... On appeal, however, the burden is on the opposing party to demonstrate that the trial court’s decision to grant the movant’s summary judgment motion was clearly erroneous.” (Citations omitted; internal quotation marks omitted.) Id.

“[T]he determination of the intent behind language in a deed, considered in the light of all the surrounding circumstances, presents a question of law on which our scope of review is plenary. . . . Thus, when faced with a question regarding the construction of language in deeds, the reviewing court does not give the customary deference to the trial court’s factual inferences.” (Internal quotation marks omitted.) Bird Peak Road Assn., Inc. v. Bird Peak Corp., 62 Conn. App. 551, 557, 771 A.2d 260, cert, denied, 256 Conn. 917, 773 A.2d 943 (2001).

“The principles governing the construction of instruments of conveyance are well established. In construing a deed, a court must consider the language and terms of the instrument as a whole. . . . Our basic rule of construction is that recognition will be given to the expressed intention of the parties to a deed . . . and that it shall, if possible, be so construed as to effectuate the intent of the parties. ... In arriving at the intent expressed ... in the language used, however, it is always admissible to consider the situation of the parties and the circumstances connected with the transaction, and every part of the writing should be considered with the help of that evidence.” (Internal quotation marks omitted.) Cohen v. Hartford, 244 Conn. 206, 214, 710 A.2d 746 (1998). “Further, [i]t is a well established principle of construction that wherever possible each part of the scrivener’s phraseology should be given some import. . . . Every word, sentence and provision, if possible, is to have effect, and a construction which requires rejection of an entire clause is not to be admitted . . . .” (Internal quotation marks omitted.) Bird Peak Road Assn., Inc. v. Bird Peak Corp., supra, 62 Conn. App. 557. In addition, “when a deed sets forth two different descriptions of the property to be conveyed, the one containing the less certainty must yield to that possessing the greater, if apparent conflict between the two cannot be reconciled.” (Internal quotation marks omitted.) Id., 558.

“In the construction of a deed or grant, the language is to be construed in connection with, and in reference to, the nature and condition of the subject matter of the grant at the time the instrument is executed, and the obvious purpose the parties had in view. ” (Emphasis added; internal quotation marks omitted.) Ezikovich v. Linden, 30 Conn. App. 1, 6, 618 A.2d 570, cert, denied, 225 Conn. 913, 623 A.2d 1023 (1993). “[I]f the meaning of the language contained in a deed or conveyance is not clear, the trial court is bound to consider any relevant extrinsic evidence presented by the parties for the purpose of clarifying the ambiguity.” (Internal quotation marks omitted.) Il Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502, 511, 757 A.2d 1103 (2000).

In this case, the parties do not dispute the relevant facts, but they disagree on whether the court reached the correct legal conclusion therefrom. We, therefore, must review the court’s construction of the 1989 deed from Windy Ridge to the Maguires to discern whether that construction is legally and logically correct. The plaintiff, as Windy Ridge’s successor in title, could acquire only whatever interest was held by Windy Ridge. If Windy Ridge relinquished its right-oi-way over the Maguire property to the Maguires by virtue of the 1989 deed, Windy Ridge could not have conveyed the right-of-way to the plaintiff when the latter purchased his property in 1995.

The 1989 deed executed by Windy Ridge conveyed to the Maguires “ALL right, title and interest of [Windy Ridge], if any, to the premises lying Westerly and Southerly of [the boundary lines] which are more particularly shown on a certain map entitled ‘Map Prepared for WINDY RIDGE, INC. Melius Road Warren, Connecticut Scale 1” = 200’ May, 1989’, certified substantially correct by Richard J. Adams, R.L.S. #9674, Kent, Connecticut, and to be filed in the office of the Town Clerk of the Town of Warren . . . .’’No specific mention is made, however, of any relinquishment of the right-of-way. That clause standing alone could nonetheless be read to transfer the right-of-way, which lies to the west and south of the boundary line, to the Maguires, thereby extinguishing it, by virtue of the all encompassing language at the outset, i.e., “ALL right, title and interest.”

The instrument further provides, however, that “[t]he intention of this deed is to establish the above-referenced lines as the boundary line between the Grantor’s and Grantee’s property.” The plaintiff argues that this clause operates as a limitation on the broad language in the granting clause previously recited, while the defendant claims that it merely states one of the intentions of the deed, another, albeit unarticulated one being the transfer of the right-of-way. We agree with the plaintiff. If we were to accept the interpretation urged by the defendant, the clause would be rendered mere surplusage, offending the rule of construction requiring us to give import to each part of the scrivener’s language. That is so because the broad language of conveyance along with the specific description of the boundary line would have been sufficient to establish the boundary and, thus, there was no need to further state the intent of the deed to effect that result. In adding the intention clause, therefore, the drafter of the deed meant to establish that the instrument was executed for a limited purpose, that is, to set the boundary.

Furthermore, “[a] reference to [a] map in [a] deed, [f]or a more particular description, incorporates [the map] into the deed as fully and effectually as if copied therein. Bankers Trust Co. v. Zoning Board of Appeals, 165 Conn. 624, 631, 345 A.2d 544 (1974). [T]he identifying or explanatory features contained in maps referred to in a deed become part of the deed, and so are entitled to consideration in interpreting the deed as though they were expressly recited therein.” (Internal quotation marks omitted.) Bolan v. Avalon Farms Property Owners Assn., Inc., 250 Conn. 135, 141-42, 735 A.2d 798 (1999); see also General Statutes § 7-31. According to the rules of construction previously outlined, the general conveyance in the text of the deed must yield to the specific reservation of the right-of-way in the survey map incorporated into the deed by explicit reference thereto. Although the map contains little detail aside from the boundary line, the right-of-way is conspicuously present, as is a citation to its description in the Warren land records. The inclusion of the right-of-way on the incorporated map, with a reference to its description in the town records, but lacking any indication that it was “former” or “extinguished” manifests an intent that the right-of-way remain viable after the boundary line was confirmed.

Because the conflict between the specific intent clause and the map showing the right-of-way and the general granting clause introduces some ambiguity into the instrument, we also consider extrinsic evidence bearing on what Windy Ridge meant to convey to the Maguires. First, we note that the reciprocal nature of the deed exchange between the Maguires and Windy Ridge, by which each party essentially granted to the other a parcel of land that the grantee already owned, suggests the mere purpose of clarifying the boundary between them. That is supported by a notation on the survey map, prepared two months before the deeds, stating, “Boundary Line Agreement Necessary with Maguire.” Second, the defendant’s deposition testimony further supports our conclusion that the intent of the parties to the conveyance was limited. In his deposition, the defendant explained that Cashion approached him requesting the deed exchange to clarify the boundary. The defendant twice stated in the deposition that there was no discussion at ail concerning the extinguishing of the right-of-way. Last, Windy Ridge’s transfer of the right-of-way to the plaintiff for consideration just six years later belies the defendant’s assertion that Windy Ridge intended to convey it to the Maguires gratuitously via the 1989 deed. In sum, the obvious purpose of the 1989 deed was to set the boundary line and nothing more.

Our plenary review of the court’s construction of the 1989 deed and examination of the circumstances surrounding the conveyance convinces us that the deed expresses only the intent to clarify the boundaries between the parties’ property and not to transfer the right-of-way to the Maguires. The court, therefore, improperly granted the defendant’s motion for summary judgment.

In support of their respective motions for summary judgment, the parties also argued for and against the propositions that the right-of-way had been extinguished by nonuse, and that the right-of-way was limited to the purpose of quarrying. The court, considering its ruling that the 1989 deed extinguished the easement, did not address either of those issues. Because the court’s memorandum of decision does not include any discussion or legal conclusions regarding those matters, we cannot address them on appeal.

The judgment is reversed and the case is remanded with direction to deny the defendant’s cross motion for summary judgment, to grant the plaintiffs motion for summary judgment in that the 1989 deed did not extinguish the right-of-way and for further proceedings to address the parties’ remaining claims in accordance with law.

In this opinion the other judges concurred.

       The original parties to this action were the plaintiff, Adil Mulla, and the defendants, James P. Maguire, Jr., and Catherine Maguire, trustees. On December 14,2000, Catherine Maguire died. On January 4, 2001, we granted the motion to substitute James P. Maguire, Jr., trustee, as party defendant. Hereinafter, we will refer only to James P. Maguire, Jr., trustee, as the defendant.

       The 1989 deed reads in relevant part as follows: “WINDY RIDGE, INC. . . . acting herein by EDNA K. CASHION, its Vice President, duly authorized for divers good causes and considerations thereunto moving, especially for consideration other than monetary consideration received to its full satisfaction of JAMES P. MAGUIRE, JR. and CATHERINE M. MAGUIRE, TRUSTEES, both of Melius Road, Warren, Connecticut have remised, released, and forever quitclaimed, and do by these Presents, for itself and its successors and assigns, justly and absolutely remise, release, and forever QUITCLAIM unto the said Releasees, JAMES P. MAGUIRE, JR. and CATHERINE M. MAGUIRE, TRUSTEES and the survivor of them, and the heirs and assigns of the survivor of them forever all such right and title as it the said WINDY RIDGE, INC. have or ought to have in or to
      “ALL right, title and interest of the Grantor, if any, to the premises lying Westerly and Southerly of the hereinafter described lines, situated in the Town of Warren, County of Litchfield and State of Connecticut, which are more particularly shown on a certain map entitled ‘Map Prepared for WINDY RIDGE, INC. Melius Road Warren, Connecticut Scale 1” = 200’ May, 1989’, certified substantially correct by Richard J. Adams, R.L.S. #9674, Kent, Connecticut, and to be filed in the office of the Town Clerk of the Town of Warren:
      “A line commencing at an iron pin marking the comer of premises the Grantees and premises now or formerly of Cleve Gray, thence proceeding N 64° 48’ 44” W 82.82 feet to an iron pin; thence N 05° 42’ 09” W 197.83 feet to an iron pin; thence N 51° 56’ 15” W 32.27 feet to an iron pin; thence N 03° 56’ 35” E 241.70 feet to a point; thence N 16° 48’ 11” E 219.85 feet to a point; thence N 02° 06’ 03” E 256.56 feet to a drill hole; and
      “A line proceeding from the above-referenced drill hole S 85° 44’ 40” W 120.68 feet to a point; thence S 87° 55’ 16” W 178.95 feet to an iron pin set in the easterly line of Melius Road, so-called.
      “The intention of this deed is to establish the above-referenced lines as the boundary line between the Grantor’s and Grantee’s property.”

       The deed described the Mulla property only as “[a]LL THAT certain piece or parcel of land, situated in the Town of Warren, County of Litchfield and State of Connecticut, containing 230.919 Acres and being shown and designated on that certain map entitled ‘Map Prepared for WINDY RIDGE, INC. Melius Road Warren, Connecticut Scale 1” = 200’ May, 1989’, which map is certified substantially correct as a Class A-2 survey by Richard J. Adams, R.L.S. #9674, Kent, Connecticut, and which map is to be filed in the office of the Town Clerk of the Town of Warren, to which reference may be had.”

       The defendant argued, and the court agreed, that the clause did not read, “The sole intention of this deed is to establish the above-referenced lines as the boundary line,” and opined that additional terms should not be read into the language of the deed. We note, however, that in interpreting the clause to read, “One of the intentions of this deed is to establish the above-referenced lines as the boundary line,” the court drew just such an inference.

       General Statutes § 7-31 provides in relevant part: “When any person having an interest in land has caused it to be surveyed and plotted or laid out into lots and projected highways, and a map made, which map shall bear the seal of the surveyor and a certification that it is substantially correct to the degree of accuracy shown thereon, and when such projected highways have been approved by the municipal authorities empowered to approve the layout of highways, the map may be received and placed on file in the office of the clerk of the town in which such land is situated and shall thereupon be deemed apart of the deeds referring thereto . . . (Emphasis added.)

       The defendants correctly point out that pursuant to General Statutes § 47-36f, a quitclaim deed conveys “all the releasor’s right, title and interest in and to the property described therein except as otherwise limited therein . . . .” Here, the intention clause and the incorporated survey map provided just such a limitation.


author: PER CURIAM.

text:
    JOHN LAZORIK ET AL. v. RITA J. DONALDSON
    (AC 21250)
    Landau, Mihalakos and Shea, Js.
    Argued May 30
    officially released September 11, 2001

      Rita J. Donaldson, pro se, the appellant (defendant).

      Andre D. Dorval, with whom was Timothy M. Lodge, for the appellees (plaintiffs).
   Opinion

PER CURIAM.

In this foreclosure action, after the parties entered into a stipulated judgment, the defendant, Rita J. Donaldson, filed a motion to reopen the judgment and to extend the law day. The defendant, who is pursuing this appeal pro se, appealed following the trial court’s denial of her motion to reopen. On appeal, the defendant claims that the trial court abused its discretion when, during the hearing on the motion to reopen, it denied her request for additional time to obtain new counsel. We affirm the judgment of the trial court.

We review the court’s decision under an abuse of discretion standard. See Chaplin v. Balkus, 189 Conn. 445, 448-49, 456 A.2d 286 (1983). In the present case, on August 14, 2000, the defendant filed, and the court granted, a motion to open the judgment and to extend the law day. The court extended the law day for one month. Prior to the law day, the defendant filed a motion to reopen the judgment. A few days prior to the hearing on the motion to reopen, the defendant allegedly discovered that her counsel had agreed to the aforementioned stipulated judgment without her consent. She immediately discharged her counsel and, at the hearing, requested additional time so that she could hire new counsel. The court denied her request and subsequently denied her motion to reopen. After carefully reviewing the record and the briefs, we conclude that the court did not abuse its discretion in denying the defendant’s request for additional time to hire new counsel.

The judgment is affirmed.

       In her brief and at oral argument, the defendant challenges the propriety of the stipulated judgment. By order of December 19,2000, this court granted the plaintiffs’ motion to dismiss to the extent that the defendant challenged the stipulated judgment. This court denied the defendant’s motion to reconsider that part of the order on January 24, 2001. Therefore, we will not review any issue challenging the propriety of the stipulated judgment.

       Although the defendant claims that she did not discover her counsel’s impropriety until days before the hearing on the motion to reopen and, therefore, she did not have enough time to hire new counsel, she neither brought an action against her former counsel nor, at the very least, provided any evidence on appeal to support her claim of attorney misconduct.