author: PER CURIAM.

text:
    CARLYLE HERRING v. COMMISSIONER OF CORRECTION
    (AC 26795)
    DiPentima, McLachlan and Dupont, Js.
    Argued April 24
    officially released August 28, 2007

      Martha Brooke Hansen, special public defender, for the appellant (petitioner).

      Marjorie Allen Dauster, senior assistant state’s attorney, with whom, on the brief, was Linda N. Howe, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Carlyle Herring, appeals following the habeas court’s denial of his petition for certification to appeal from the judgment denying his petition for a writ of habeas corpus. The petitioner claims that the court (1) abused its discretion in failing to grant certification to appeal and (2) improperly rejected his claim that his trial counsel, Donald D. Dakers, rendered ineffective assistance. Specifically, the petitioner argues that the court improperly concluded that he was informed adequately of a plea offer and the consequences of failing to accept the plea offer within a reasonable time. We dismiss the appeal.

The following factual and procedural history is relevant to the petitioner’s appeal. The petitioner was charged with felony murder in violation of General Statutes § 53a-54c, conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a) (2), robbery in the first degree in violation of General Statutes § 53-134 (a) (2), assault in the first degree in violation of General Statutes § 53a-59 (a) (5) and carrying a pistol without a permit in violation of General Statutes § 29-35. At some point prior to January 27,1998, the state offered the petitioner the opportunity to plead guilty to manslaughter only, in exchange for truthfully testifying at the trial of his alleged coconspirator, James Griffin. The petitioner did not agree to testify at the time of the offer. On the eve of the petitioner’s trial, however, the state made a subsequent offer, which the petitioner accepted. On January 27,1998, the petitioner pleaded guilty to felony murder committed during the course of a robbery, conspiracy to commit a robbery and assault in the first degree. On November 6, 1998, the court, Damiani, J., after having considered that the petitioner truthfully testified at the Griffin trial, sentenced the petitioner to a total effective term of twenty-five years imprisonment. After the court announced the sentence, it engaged in a colloquy with the defense counsel, from which the following is excerpted:

“[Defense Counsel]: Just, Your Honor, I wish this young man had taken my advice earlier, prior to [a subsequent prosecutor] coming in. I think that’s probably true—what’s true with the codefendant is also true with this defendant, and I would ask—
“The Court: They both should have listened to their lawyers.
“[Defense Counsel]: You are right.
“The Court: What was he at? Eighteen on a manslaughter or something. That other was eight years on a conspiracy for robbery.
“[Defense Counsel]: You are absolutely right.
“The Court: Now, he’s doing twenty-five. No parole. No good time. The other kid is doing forty-five, no parole, no good time.”

The petitioner filed an amended petition for a writ of habeas corpus on July 26, 2004, claiming ineffective assistance of counsel. The petitioner conceded to the habeas court, Fuger, J., that Dakers had informed him of the state’s offer to plead guilty to manslaughter, but argued that Dakers never informed him that the state offered an eighteen year sentence. The court, after hearing the testimony of Dakers and the petitioner, concluded that “the court cannot find that there was [a specific offer of eighteen years] made by the state.” The court further found that Dakers had engaged in “substantial communications with [the petitioner] about pleading to manslaughter.” The court later denied the petition for certification to appeal. The petitioner now appeals from the judgment denying his petition for a writ of habeas corpus pursuant to Simms v. Warden, 229 Conn. 178, 186-89, 640 A.2d 601 (1994).

When the habeas court denies a petition for certification to review its judgment, a petitioner seeking review must first demonstrate that the court abused its discretion in denying the petition. Fernandez v. Commissioner of Correction, 96 Conn. App. 251, 261, 900 A.2d 54, cert. denied, 280 Conn. 908, 907 A.2d 89 (2006). To prove an abuse of discretion, the petitioner must demonstrate that the resolution of the underlying claim involves issues that are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions are adequate to deserve encouragement to proceed further. Id., 261-62. To prove a claim of ineffective assistance of counsel, a petitioner must show that his counsel’s performance was deficient and that this deficiency was prejudicial. Id., 262; see also Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “[0]ur 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.) Fernandez v. Commissioner of Correction, supra, 262. Our standard to review the court’s findings of underlying fact, however, is the familiar clearly erroneous standard. See Festo v. Luckart, 191 Conn. 622, 635, 469 A.2d 1181 (1983). Generally, this court “does not retry the case or evaluate the credibility of the witnesses.” (Internal quotation marks omitted.) Payne v. Commissioner of Correction, 62 Conn. App. 583, 586, 772 A.2d 630 (2001).

The petitioner primarily argues that the court’s finding that there was never any offer of an eighteen year sentence was clearly erroneous. We disagree.

The petitioner asserts that because the sentencing court asked, “What was he at? Eighteen [years] on a manslaughter [charge] or something,” the habeas court’s finding that there was no offer for eighteen years was clearly erroneous. The petitioner did not provide any evidence to the habeas court, however, that the sentencing court knew or could have known whether Dakers was informed of such an offer. The petitioner failed to offer any other evidence that such an offer was communicated to his trial counsel. Additionally, Dakers testified that the state’s general practice is to avoid offering specific sentence terms and that he had no recollection of the state’s varying from that practice in this case. We conclude that the habeas court’s finding was not clearly erroneous.

The petitioner also argues that even if there were no specific offer of eighteen years, the court abused its discretion in determining that he had been informed adequately of the state’s offer to allow him to plead guilty to manslaughter and the possibility of the state’s withdrawing that offer if it was not timely accepted. The petitioner primarily relies on Sanders v. Commissioner of Correction, 83 Conn. App. 543, 851 A.2d 313, cert. denied, 271 Conn. 914, 859 A.2d 569 (2004). The habeas court in that case credited the testimony of the petitioner, who had declined a plea offer and proceeded to trial, that his defense counsel had not told him of various witnesses who were prepared to testify at his trial, nor the likely result if the petitioner proceeded to trial. Id., 549. From these facts, the habeas court concluded that defense counsel had not meaningfully explained the plea offer. On the basis of the testimony credited by the habeas court, this court agreed.

Here, in contrast, the court found that Dakers had engaged in substantial communication with and encouraged the petitioner to accept the state’s offer, and that Dakers both communicated to the petitioner the consequences of not pleading guilty to manslaughter and of the need to accept the offer promptly. After reviewing the record, we conclude that the court did not abuse its discretion in determining that Dakers adequately informed the petitioner of the offer and the consequences of not accepting it.

After having reviewed the record, we conclude that on the basis of the facts properly found by the habeas court, the issue of whether Dakers provided effective assistance is not debatable among jurists of reason, the issues could not have been determined in a different manner and the issues posed do not deserve encouragement to proceed further. Therefore, we conclude that the court did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

       The petitioner also asserts in his appellate brief that “as a consequence of being underinformed [about the state’s plea offer], it is unclear whether his [later] plea [of guilty] was knowing, intelligent and voluntary . . . .” Even if we assume, only for the limited purpose of addressing this assertion, that counsel provided inadequate information regarding an earlier plea offer, the petitioner has failed to provide any authority demonstrating that this assertion, alone, undermines the voluntariness of a later plea. We decline to review this issue.

       To the extent that the petitioner argues that his appeal should go forward because the court could have weighed the witnesses’ credibility differently, we decline to review the petitioner’s arguments. As an appellate court, we do not weigh credibility. Payne v. Commissioner of Correction, supra, 62 Conn. App. 586; see Sanders v. Commissioner of Correction, 83 Conn. App. 543, 550, 851 A.2d 313, cert. denied, 271 Conn. 914, 859 A.2d 569 (2004).

       Dakers testified, among other things, that “there definitely came a time when I said to him, ‘you either take this manslaughter and testify or all deals are going to be off.’ ” Further, the respondent, the commissioner of correction, asked Dakers: “[WJould it be fair to say that you made strenuous efforts to get [the petitioner] to cooperate with the state, and he was not willing to do so in an affirmative enough fashion to result in a plea bargain prior to the one that was struck on the eve of trial?” Dakers answered: “That’s true.”


source: Caselaw Access Project

author: FLYNN, C. J.

license: Public Domain

text:
    FIELD POINT PARK ASSOCIATION, INC., ET AL. v. PLANNING AND ZONING COMMISSION OF THE TOWN OF GREENWICH ET AL.
    (AC 27231)
    Flynn, C. J., and DiPentima and Hennessy, Js.
    Argued February 5
    officially released August 28, 2007

      Andrew J. McDonald, with whom was Charles K. Campbell, Jr., for the appellants (plaintiffs).

      JohnP. Tesei, with whom was ChristopherD. Bristol, for the appellee (defendant JSM Partners, LLC).
   Opinion

FLYNN, C. J.

The plaintiffs, Field Point Park Association, Inc., Phillip B. Korsant, Catherine N. Korsant and Carl N. Graf, appeal from the judgment of the trial court dismissing their appeal from a decision of the defendant planning and zoning commission of the town of Greenwich (commission), approving the application for a coastal site plan for demolition of an existing structure and construction of a single-family house on lot B of 110 Field Point Circle in Greenwich (property) filed by the defendant JSM Partners, LLC (applicant). On appeal, the plaintiffs claim that the court improperly determined that the Greenwich building zone regulations (regulations) permit a portion of the area beneath Field Point Circle, a private road, owned in fee simple by the applicant, to be included for purposes of calculating the size of lot B. We reverse the judgment of the trial court.

The following facts are not in dispute. On November 15, 2002, the applicant submitted a coastal site plan application to the commission to permit the demolition of an existing home and the construction of a new single-family dwelling, a swimming pool and related structures on lot B, 110 Field Point Circle. Lot B consisted of 2.034 acres, but 0.114 of an acre is located under a portion of a private roadway, Field Point Circle, which serves the neighborhood. The commission conducted a series of public hearings on the application from January 7 through June 10, 2003. On the basis of the commission’s inteipretation of the regulations, the applicant met the two acre minimum lot size requirement for residential building lots in the RA-2 zone, the zone in which lot B is located, and the commission approved the application. Specifically, the commission interpreted the regulations to allow the applicant to include that portion of land, owned by the applicant in fee simple, which contains the right-of-way that serves as a portion of Field Point Circle, in calculating the size of lot B. Lot B meets the two acre requirement only if the area containing the right-of-way is included in the lot size calculation; without the inclusion of this area, lot B is only 1.92 acres.

The plaintiffs appealed from the commission’s decision to the Superior Court, and the appeal was tried to the court, Wilson, J., on April 18, 2005. The court, after conducting a plenary review of the regulations at issue, agreed with the commission’s interpretation that the regulations permit the applicant to include the land it owned, located beneath a portion of Field Point Circle, in its calculation of the size of lot B, and it dismissed the plaintiffs’ appeal. The plaintiffs filed a petition for certification to appeal to this court, which we granted, and this appeal followed.

On appeal, the plaintiffs claim that the commission and the court improperly interpreted the regulations to permit the applicant to include land it owns in fee simple, located under a private roadway, for purposes of calculating the size of lot B.

Resolution of this issue requires us to review and analyze the relevant town zoning regulations. “Because the interpretation of the regulations presents a question of law, our review is plenary. . . . Additionally, zoning regulations are local legislative enactments . . . and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes.” (Internal quotation marks omitted.) Alvord Investments, LLC v. Zoning Board of Appeals, 282 Conn. 393, 416, 920 A.2d 1000 (2007). “Ordinarily, [appellate courts afford] deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute’s purposes. . . . Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . Furthermore, when [an] agency’s determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference. . . . [I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law.” (Internal quotation marks omitted.) Wood v. Zoning Board of Appeals, 258 Conn. 691, 698-99, 784 A.2d 354 (2001).

Regulations must be viewed to form a cohesive body of law, and they “must be construed as a whole and in such a way as to reconcile all their provisions as far as possible.” (Internal quotation marks omitted.) Bethlehem Christian Fellowship, Inc. v. Planning & Zoning Commission, 73 Conn. App. 442, 462, 807 A.2d 1089, cert. denied, 262 Conn. 928, 814 A.2d 379 (2002). This is true because “particular words or sections of the regulations, considered separately, may be lacking in precision of meaning to afford a standard sufficient to sustain them.” (Internal quotation marks omitted.) Id. “When more than one construction is possible, we adopt the one that renders the enactment effective and workable and reject any that might lead to unreasonable or bizarre results.” (Internal quotation marks omitted.) Graff v. Zoning Board of Appeals, 277 Conn. 645, 657, 894 A.2d 285 (2006); see Red Hill Coalition, Inc. v. Town Plan & Zoning Commission, 212 Conn. 727, 737-38, 563 A.2d 1347 (1989). “[W]e consider the statute as a whole with a view toward reconciling its parts in order to obtain a sensible and rational overall interpretation.” (Internal quotation marks omitted.) Fruin v. Colonnade One at Old Greenwich Ltd. Partnership, 237 Conn. 123, 130, 676 A.2d 369 (1996). With these standards as a guide, we commence our review.

The determination of whether the area beneath Field Point Circle may be included in the area calculations of lot B depends on the proper construction to be given to the relevant portions of the regulations, read in the context of all of the regulations, their evident purpose and policy, and recognized principles of zoning in general. See Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 26-27, 717 A.2d 77 (1998).

First, we look to the definition of “lot” contained in the regulations. A “lot” is defined in relevant part as “a parcel of land occupied or to be occupied by a building or a group of buildings and their accessory uses, including such open spaces as are required by these regulations and such other open spaces as are used in connection with the buildings.” Greenwich Building Zone Regs., § 6-5 (33). The question here then becomes whether the portion of Field Point Circle that runs over the applicant’s land properly can be considered part of the applicant’s lot when assessing whether the lot meets the minimum lot size for building purposes.

Clearly, the area beneath Field Point Circle could not be covered by that portion of the definition of lot defining it as “being occupied or to be occupied by a building or group of buildings . . . .” Id. Although it is possible to construct and raise a building over a street in such a manner that passage by vehicular and pedestrian traffic is possible, we are guided by that rubric of statutory construction that the legislative body is presumed to have intended a sensible result. “When two constructions are possible, courts will adopt the one which makes the [statute] effective and workable, and not one that leads to difficult and possibly bizarre results.” (Internal quotation marks omitted.) Red Hill Coalition, Inc. v. Town Plan & Zoning Commission, supra, 212 Conn. 737-38. Lot B is located in a residential zone, denominated RA-2, which requires that any buildings be set back from the roadway with a minimum front yard of at least seventy-five feet. Greenwich Building Zone Regs., § 6-205. That requirement could not be satisfied by a building located in whole or in part over the roadway. We therefore conclude that viewing the zoning ordinance as a whole, the private roadway could not satisfy the portion of the definition defining a lot as a land parcel occupied or to be occupied by a building.

The applicant argues that the area beneath the roadway area properly could be considered an accessory use or open space under the regulations. The plaintiffs cite to several decisions in other jurisdictions and argue that every other jurisdiction having considered this issue has held that land beneath a private roadway, which is held in fee simple by the applicant, cannot be considered an accessory use or open space. Having reviewed the decisions cited by the plaintiffs, as well as other decisions, we find them unpersuasive in that they contain little or no analysis as to why such areas could not be considered accessory uses under particular ordinances or the ordinances do not contain an “accessory use” provision. Compare id., § 6-5 (33) (defining lot in relevant part as “a parcel of land occupied or to be occupied by a building or a group of buildings and their accessory uses” [emphasis added]) with the ordinance cited in Loveladies Property Owners Assn., Inc. v. Barnegat City Service Co., 60 N.J. Super. 491, 498, 159 A.2d 417 (App. Div.) (defining lot in relevant part as “ [a] parcel of land on which a main building and its accessory buildings are or may be placed” [emphasis added; internal quotation marks omitted]), cert. denied, 33 N.J. 118, 162 A.2d 342 (1960). Additionally, other cases that we have reviewed, which hold that the area beneath private roadways cannot be considered “open space” simply because it contains impervious pavement, also are unpersuasive. See, e.g., Board of County Commissioners v. Aurora, 62 P.3d 1049, 1052-53 (Colo. App. 2002) (holding that roadway, improved by grading and surfacing, could not be “open space”). This is so because one of the required areas of open space in the Greenwich regulations is the “front yard.” See Greenwich Building Zone Regs., §§ 6-5 (54), 6-203 (b) and 6-205. The “front yard” area, although specifically defined as an area of “open space” under the regulations, also is an area that may contain impervious pavement in the form of driveways and walkways. Accordingly, under the Greenwich regulations, impervious pavement alone cannot be the deciding factor in whether an area is “open space.”

We also note that our Supreme Court in Morgenbesser v. Aquarion Water Co., 276 Conn. 825, 888 A.2d 1078 (2006), a case concerning a restrictive covenant that only permitted uses that were accessory to or incidental to the primary use of the property for water supply, specifically stated that “[t]he construction of a road ... is not a water supply use in and of itself, but might contribute to the use of the property for that purpose and, therefore, could be an accessory use." (Emphasis added.) Id., 832. Accordingly, the cases cited by the plaintiffs provide no assistance to our analysis of the Greenwich regulations.

In conducting a comprehensive review of the Greenwich regulations, however, we are convinced that the area beneath Field Point Circle cannot be considered part of the applicant’s lot when determining minimum lot size. We continue our examination of the regulations at issue in this case, with § 6-5 (46), which leads us to conclude that Field Point Circle is a “street.” Section 6-5 (46) defines the term “street” to “mean and include all public and private streets, highways, avenues, boulevards, parkways, roads and other similar ways.” Greenwich Building Zone Regs., § 6-5 (46). The plain language of § 6-5 (46) defining “street” would encompass that portion of land under Field Point Circle owned in fee simple by the applicant because it is a portion of a private street or “other similar [way].”

Under the Greenwich regulations, a “front yard” is defined as “an open space across the full width of the lot between the front wall of the principal building and the front lot line.” Id., § 6-5 (54). Section 6-203 (b) of the regulations provides: “The required minimum front yard depths and street side yard widths are based on streets at least fifty (50) feet wide. For every foot less in width of a street, the required depths and widths of front yards and street side yards, respectively, are to be increased six (6) inches.” Id., § 6-203 (b). The regulations define “lot frontage” as “the distance between the side lines of a lot measured along the street which distance continues undiminished to a depth equivalent to at least the front yard setback requirement of the zone. Where the front lot line is along the circular terminus of a cul-de-sac, the distance may be measured along the required setback line parallel to the street line.” Id., § 6-5 (35). Reviewing these regulations in conjunction with the regulatory definition of “lot,” the only reasonable conclusion is that the regulations would not allow the area beneath a roadway to be considered part of the lot for purposes of lot size calculation.

In the RA-2 zone, for example, the regulations mandate that the front yard have a minimum depth of seventy-five feet. Id., § 6-205. Where the adjoining street is less than the required fifty feet in width, however, the regulations require that the front yard depth be increased by six inches for every foot lacking from the fifty foot street width. See id., § 6-203 (b). Accordingly, if an applicant’s lot is located on a street that is thirty feet wide, its required front yard depth is not seventy-five feet from the street, but, rather, it is eighty-five feet from the street. It seems incongruous, then, to allow the actual land beneath the street to be included in calculating lot size when it specifically is excluded in calculating front yard depth.

We also are drawn to § 6-131 and diagram 7.1 of the regulations. Section 6-131 (a) provides in relevant part that a rear lot may be improved provided: “(1) Such lot has access to a street by means of an unobstructed access way held in the same fee simple ownership as the rear lot; (2) That such access way shall be [twenty] feet wide ... (3) Within the lines of such access way there shall be constructed a graveled or other paved way at least [twelve] feet wide ... (5) The area of access way is excluded from lot area calculation for lot size and [floor area ratio] ... (7) Such access way shall not be included for the purpose of meeting the area required by [§] 6-205 of the rear lot.” Id., § 6-131 (a). Diagram 7.1 depicts a rear lot in the shape of a flag with a pole, having a twenty foot wide accessway, and specifically states: “The area of accessway is excluded from lot area calculation for lot size . . . .” Id., diagram 7.1. Reading the regulations to form a cohesive body of law, as we must; see Bethlehem Christian Fellow ship, Inc. v. Planning & Zoning Commission, supra, 73 Conn. App. 462; we, again, find it incongruous that the regulations specifically would prohibit a rear lot owner, who has a fee interest in a private accessway that serves only the rear lot, from including the area of such accessway in its lot size calculation, but, on the other hand, would allow a front lot owner to include a private roadway, which serves an entire neighborhood, in its lot size calculation. Such a construction simply does not comport with our reading of the regulations in their entirety.

Mindful that in interpreting regulations, we must “reconcile their provisions and make them operative so far as possible”; (internal quotation marks omitted) Graff v. Zoning Board of Appeals, supra, 277 Conn. 657; we have adopted a construction that renders the regulations effective, consistent and workable and have rejected the reading proposed by the applicant and the board that, we conclude, would lead to inconsistent, unreasonable or bizarre results. See id. We conclude that the area beneath Field Point Circle does not fit within the definition of “lot” contained in the Greenwich building zone regulations.

The judgment is reversed and the case is remanded with direction to sustain the plaintiffs’ appeal.

In this opinion the other judges concurred.

       The plaintiffs place much emphasis on Bankers Trust Co. v. Zoning Board of Appeals, 165 Conn. 624, 345 A.2d 544 (1974), a case in which the Supreme Court determined that an area of land, split into two separate parcels by a roadway going completely through it from north to south, could not be considered one lot for building purposes. Despite the arguments of the plaintiffs, we do not consider Bankers Trust Co. particularly helpful to our analysis of the Greenwich regulations.


author: McLACHLAN, J.

text:
    DAPHNE MCKINNEY v. BRIAN CHAPMAN
    (AC 27579)
    DiPentima, McLachlan and Stoughton Js.

      Argued April 17
    officially released August 28, 2007

      W. Martyn Philpot, Jr., with whom, on the brief, was Marc L. Glenn, for the appellant (plaintiff).

      David C. Nelson, assistant attorney general, with whom were Jane B. Emons, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, for the appellee (defendant).
   Opinion

McLACHLAN, J.

The plaintiff, Daphne McKinney, appeals from the summary judgment rendered by the trial court in favor of the defendant, Brian Chapman, her former supervisor. On appeal, the plaintiff claims that the court improperly determined that the defendant was absolutely privileged to publish allegedly defamatory statements about her contained in two documents that he had written and prepared. We affirm the judgment of the trial court.

The following procedural history and facts, as taken from the pleadings, affidavits, the court’s memorandum of decision and other documentary information, are relevant to our resolution of the issues on appeal. The defendant was the former supervisor of the plaintiff in the ride sharing unit of the department of transportation (department). On July 25,2001, the plaintiff commenced an action in federal District Court against the department on the basis of alleged discrimination in failing to promote her. In July, 2002, Loretta Radikas, a legislative and administrative adviser for the department, contacted the defendant and informed him that one of the plaintiffs allegations was that she was not doing work because the defendant was not giving her work. Radikas asked for and received an oral response from the defendant in regard to that accusation. In August, 2002, the defendant wrote a document entitled, “Chronology (Brian Chapman’s history of supervising Daphne McKinney).” On or about October 28, 2002, the defendant wrote a second document entitled, “Brian Chapman’s response to Daphne McKinney’s claim that she was not working because Brian ‘didn’t give her any work.’ ” The plaintiff learned about the chronology and response when the defendant mentioned them during his deposition in the federal litigation.

On December 11, 2003, the plaintiff and the department entered into a “Stipulated Agreement” to which was appended a signed general release of liability (release). The release purported to preclude all causes of action alleging violations of the plaintiffs federal and state constitutional rights, and her rights arising under federal and state laws against the department and any present or former officers, agents or employees of the department.

Several months later, on April 12, 2004, the plaintiff commenced this action against the defendant, claiming defamation, intentional infliction of emotional distress and negligent infliction of emotional distress caused by the statements that he made in the chronology and the response. In response, on July 20, 2005, the defendant filed a motion for summary judgment against the plaintiff, asserting that her claims were barred by the terms of the release executed in the prior federal litigation, and that he was absolutely privileged, or had a qualified privilege, to publish the allegedly defamatory statements contained in the chronology and the response. The plaintiff filed an objection, with supporting evidence and a memorandum of law, claiming that genuine issues of material fact existed with respect to the defendant’s claims that statements made in the chronology and response were absolutely privileged, protected by a qualified privilege and protected by the release. The court heard argument and issued its memorandum of decision on March 21, 2006, granting the defendant’s motion, finding that the absolute privilege, the qualified privilege and the release barred the plaintiffs claims. This appeal followed.

The plaintiff claims on appeal that the court improperly rendered summary judgment in favor of the defendant, arguing that the defendant’s statements are not absolutely privileged because they were not made in the context of a “judicial or quasi-judicial proceeding.” We disagree with the plaintiffs assertion.

Because the court’s decision on a motion for summary judgment is a legal determination, our review on appeal is plenary. Heussner v. Day, Berry & Howard, LLP, 94 Conn. App. 569, 572-73, 893 A.2d 486, cert. denied, 278 Conn. 912, 899 A.2d 38 (2006). “The law governing summary judgment and the accompanying standard of review are well settled. Practice Book § [17-49] requires that 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. A material fact is a fact that will make a difference in the result of the case. . . . The facts at issue are those alleged in the pleadings. . . .

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent. . . .

“It is frequently stated in Connecticut’s case law that, pursuant to Practice Book §§ 17-45 and 17-46, a party opposing a summary judgment motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. . . . [T]ypically [demonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred. . . . Moreover, [t]o establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue. . . . Such assertions are insufficient regardless of whether they are contained in a complaint or a brief. . . . Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact.” (Internal quotation marks omitted.) DaGraca v. Kowalsky Bros., Inc., 100 Conn. App. 781, 785-86, 919 A.2d 525, cert. denied, 283 Conn. 904, 927 A.2d 917 (2007).

The plaintiff claims that the court improperly determined that the defendant’s statements in the chronology and the response are entitled to an absolute privilege because they were made in connection with a “judicial proceeding.” We agree with the trial court.

In Connecticut, the doctrine of absolute privilege is along-standing rule that protects otherwise defamatory statements made in the context of judicial or quasi-judicial proceedings. See Petyan v. Ellis, 200 Conn. 243, 245-46, 510 A.2d 1337 (1986). “From the earliest times, this state has recognized that the absolute privilege is to be extended for the protection of those participating in judicial proceedings and ‘extends to judges, counsel and witnesses.’ ” Magnan v. Anaconda Industries, Inc., 37 Conn. Sup. 38, 43, 429 A.2d 492 (1980), rev’d on other grounds, 193 Conn. 558, 479 A.2d 781 (1984). “There is a long-standing common law rule that communications uttered or published in the course of the judicial proceedings are absolutely privileged so long as they are in some way pertinent to the subject of the controversy. . . . The effect of an absolute privilege is that damages cannot be recovered for a defamatory statement even if it is published falsely or maliciously. . . . The policy underlying the privilege is that in certain situations the public interest in having people speak freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements.

“The judicial proceeding to which the immunity attaches has not been defined very exactly. It includes any hearing before a tribunal which performs a judicial function, ex parte or otherwise, and whether the hearing is public or not. ... It extends also to the proceedings of many administrative officers, such as boards and commissions, so far as they have powers of discretion in applying the law to the facts which are regarded as judicial or quasi-judicial in character.” (Citations omitted; internal quotation marks omitted.) Petyan v. Ellis, supra, 200 Conn. 245-46.

The “common law absolute privilege itself is not confined to the testimony of a witness but extends to any statement made in the course of a judicial proceeding, whether or not given under oath, so long as it is pertinent to the controversy. Thus it applies to statements made in pleadings or other documents prepared in connection with a court proceeding.” (Citation omitted.) Id., 251-52. “A party to a private litigation ... is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of or during the course and as part of, a judicial proceeding in which he participates, if the matter has some relation to the proceeding.” 3 Restatement (Second), Torts § 587 (1977).

In Petyan, our Supreme Court held that an employer’s statements were privileged when they concerned the employer’s reasons for discharging the plaintiff from her employment. Petyan v. Ellis, supra, 200 Conn. 255. There, the former employer was asked to complete a “ ‘fact-finding supplement’ ’’addressing the reasons that she terminated the plaintiffs employment. Id., 245. The court concluded that the statements were absolutely privileged because the statements were “pertinent to the purposes of the [unemployment compensation] hearing and [were] communication[s] elicited in connection with and made during an administrative proceeding . . . .” Id., 250. Similarly, the statements at issue in this case were pertinent to the purpose of the pending litigation, a failure to promote claim, and were or constituted communications in response to the plaintiffs claims that she was not getting work because the defendant was not giving her any work.

Despite the precedent set forth in Petyan, the plaintiff claims the allegedly defamatory statements were not made in connection with a judicial proceeding because (1) the defendant was not a party to the federal litigation, (2) the defendant prepared the statements of his own volition and (3) the chronology and the response, as admitted by the defendant, were not relevant to the federal litigation.

First, although the plaintiff argues that the defendant was not a party to the federal litigation, he was her supervisor at the time she initiated her federal lawsuit and most likely would have been a witness if the case had proceeded to trial. Her failure to promote claim would have required testimony from her supervisor to describe the plaintiffs work history and the reasons why she should or should not have been promoted.

Addressing the plaintiffs second and third assertions, although the defendant was asked to respond orally to the accusations and never was directly asked to prepare written statements for the federal litigation, it can be inferred from his deposition testimony, and his actions, that he prepared them in anticipation of the pending federal litigation. As to the chronology, during his deposition, when asked what prompted him to make the chronology, the defendant responded that after he was informed by Radikas about the plaintiffs allegations that “she wasn’t doing her work because her supervisor . . . did not give her work,” he responded orally to this claim, and then later decided to respond to this charge by writing and explaining the entire history between the plaintiff and himself. This indicates that if not for the call from Radikas, the defendant would not have written the chronology. It is clear from the defendant’s deposition testimony that he wanted to respond to the plaintiffs allegations more clearly, and the best way he knew how to do so was in writing. The defendant explained that for the past twenty-six years with the department, he has been “writing things and clarifying things so people will understand a situation” and, in making the chronology, was just adhering to his style developed over his long tenure with the department. Moreover, he gave the chronology to only the “key people who knew of t[he] charge.” Thus, it is clear that the defendant created the chronology to provide his superiors directly involved in the federal litigation with information to assist in the defense of the case. Therefore, the statements in the chronology are absolutely privileged because they were made in connection with the federal litigation.

As for the response, the defendant stated, in a deposition, that “[t]his was done specifically to hand over to whoever was working on [the] case so they would have this information to use as they will for the case.” The court concluded that the statements in the response and chronology were prepared by the defendant in “connection with the federal litigation.” We agree. Therefore, because the defendant’s allegedly defamatory statements are absolutely privileged, there is no genuine issue of material fact as to the plaintiffs defamation claim.

The plaintiff also claims that the court improperly concluded that her intentional infliction of emotional distress claim was barred. We disagree. In Petyan, our Supreme Court relied on the Restatement of Torts (Second) to conclude that conduct that “would be otherwise extreme and outrageous, may be privileged under the circumstances.” Petyan v. Ellis, supra, 200 Conn. 254. The Petyan court concluded that because the defendant had an absolute privilege, the plaintiffs intentional infliction of emotional distress claim was barred. Id., 254-55. Thus, in this case, because the defendant’s statements are absolutely privileged, the plaintiffs intentional infliction of emotional distress claim likewise fails.

Accordingly, because the court correctly determined that the defendant’s statements were protected by an absolute privilege, it properly granted the defendant’s motion for summary judgment as to the plaintiffs claims.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff also claims that genuine issues of material fact exist regarding her defamation claim, that there is sufficient evidence to infer that the defendant acted with malice to abrogate the immunity provided by General Statutes § 4-165, that the defendant’s statements are not protected by a qualified privilege, that her execution of a general release was not binding and preclusive on her claims against the defendant and that her common-law claims of intentional infliction of emotional distress and negligent infliction of emotional distress are supported properly by the record. During oral argument, the plaintiff conceded that her negligent infliction of emotional distress claim was barred by the immunity provided under § 4-165, thereby abandoning this claim. Because our conclusion that the statements of the defendant were absolutely privileged is dispositive of the claims, we do not address the remaining issues.

       The plaintiff raised state and federal law claims before the commission on human rights and opportunities and the equal employment opportunity commission, which are two administrative agencies created by state and federal law, respectively, to enact procedures for employment discrimination claims.

       The plaintiffs attorney, the same one representing her in this appeal, deposed the defendant in the federal litigation. According to the defendant, during this federal deposition, he gave the plaintiffs attorney copies of the chronology and response.

       As the defendant argues, he most likely would have been called to testily in the federal action as to why the plaintiff was not promoted, especially in light of the evidence that during that time period, he had given her glowing job evaluations, even rating her as “excellent” on some of the job performance measures. Therefore, he would have been a key witness in her failure to promote claim.

       The defendant stated during his deposition: “I had to clear my name based on this charge and respond to this charge. I felt the best way to do it would be to do it in writing and explain the whole history. . . . The implication, to me, sounds like I was part of some type of conspiracy, somebody who would hurt [the plaintiff], and I had encouraged her for many years, and I was shocked by it. I was so shocked that after I responded verbally to [Radikas] ... I don’t know how much clearer I can be. And after I thought about it, I said, my verbal response is not enough.”

       Because the defendant shared the chronology with only four people involved in the federal litigation, the defendant has not lost the absolute privilege afforded to these statements. See McManus v. Sweeney, 78 Conn. App. 327, 335-36, 827 A.2d 708 (2003) (“In determining whether an occasion is absolutely privileged, the pivotal factor is frequently to whom the matter is published. . . . The privilege may be lost by unnecessary or unreasonable publication to one for whom the occasion is not privileged.” [Internal quotation marks omitted.]).

       See Petyan v. Ellis, supra, 200 Conn. 255 (“[sjince the defendant had an absolute privilege to state her reasons for the termination of the plaintiffs employment in the ‘fact-finding supplement’ solicited by the employment security division, she was exercising her legal right in a permissible fashion and cannot be held liable for the intentional infliction of emotional distress”).


author: GRUENDEL, J.

text:
    STATE OF CONNECTICUT v. PETER GRANT
    (AC 26871)
    DiPentima, Gruendel and Berdon, Js.

      Argued May 29
    officially released August 28, 2007

      William B. Westcott, special public defender, for the appellant (defendant).

      Kathryn Ward Bare, special deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Anne F. Mahoney, senior assistant state’s attorney, for the appellee (state).
   Opinion

GRUENDEL, J.

The defendant, Peter Grant, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the second degree in violation of General Statutes § 53a-56 (a) (l). On appeal, the defendant claims that the jury’s verdict of guilty on the charge of manslaughter in the second degree was legally and logically inconsistent with its verdict of not guilty on the charge of carrying a dangerous weapon in violation of General Statutes § 53-206. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In the middle of the day on Sunday, July 21, 2002, the defendant was walking on Albany Avenue in Hartford when he saw the victim, Garfield Walker, outside of Carlton’s Jamaican Restaurant. The defendant and the victim, both citizens of Jamaica, had known each other for several years and had come to Connecticut at the same time in 1999. During the week preceding the incident, the defendant and the victim had worked on a farm in Avon, where they earned an hourly wage. With the defendant’s consent, the victim had collected the money owed to them; they had arranged for the victim to borrow $80 of the defendant’s $110 to pay his rent, which would be paid back to the defendant in $40 installments. When the defendant saw the victim outside the restaurant, he asked him for the remaining $30, but the victim told him that he did not have it and was waiting to meet someone, after which time he would possess the money. The defendant told the victim that he would try to return in order to collect the money and entered the car of a friend to drive to Hartford High School for a church event.

Approximately forty-five minutes to one hour later, the defendant returned, called for the victim and entered the restaurant, despite its being closed on Sunday. The victim, who had been in the kitchen talking with the proprietor, emerged. The defendant testified that the victim was brandishing a knife, which he was forced to wrest from the victim’s right hand. Because the defendant was blocked from behind when he retrieved the knife, and because the victim was immediately approaching, the defendant stabbed him. The defendant then backed out of the restaurant with the knife in his possession, in order to prevent the victim’s pursuit, and walked west on Albany Avenue. Because his right hand was cut and bleeding, the defendant went to a friend’s house to clean his wound after dropping the knife in some bushes. Although he did not tell the friend about the incident, he did inform two others whom he encountered on his way home at about 3 o’clock that afternoon. The victim ultimately died as a result of the stabbing.

The police visited the defendant at approximately midnight that night at his apartment. He willingly cooperated with them and drew a map of the location, indicating where they would be able to find the knife in the bushes. The defendant was arrested and charged with murder and carrying a dangerous weapon. Evidence was presented to the juiy on March 28, 29 and 30 and April 4, 2005. The jury returned a verdict of guilty on the charge of manslaughter in the second degree and not guilty on the charge of carrying a dangerous weapon. On April 18, 2005, the defendant filed a motion for a judgment of acquittal, which the court denied on July 1, 2005. On July 8, 2005, the defendant was sentenced to eight years imprisonment, execution suspended after four years, and five years probation. This appeal followed.

We begin our analysis of the defendant’s claim by setting forth the applicable standard of review. “The resolution of a claim of inconsistent verdicts presents a question of law. . . . Our review is therefore plenary.” (Citation omitted.) State v. Flowers, 85 Conn. App. 681, 694, 858 A.2d 827 (2004), rev’d on other grounds, 278 Conn. 533, 898 A.2d 789 (2006). The defendant’s sole claim on appeal is that his conviction of manslaughter in the second degree was both legally and logically inconsistent with his acquittal on the charge of carrying a dangerous weapon. We disagree.

Regarding the defendant’s claim that the verdict was legally inconsistent, our Supreme Court observed in State v. DeCaro, 252 Conn. 229, 745 A.2d 800 (2000), that “[wjhere the inconsistent verdicts claim involves a simultaneous conviction and acquittal on different offenses, the court, in testing the verdict of guilty for inconsistency as a matter of law, is necessarily limited to an examination of the offense charged in the information and the verdict rendered thereon without regard to what evidence the jury had for consideration. . . . If the offenses charged contain different elements, then a conviction of one offense is not inconsistent on its face with an acquittal of the other.” (Citations omitted; internal quotation marks omitted.) Id., 244.

The court accurately charged the jury on the elements of both crimes. During its charge on manslaughter in the second degree in violation of General Statutes § 53a-56, the court stated: “A person is guilty of manslaughter in the second degree when he recklessly causes the death of another person. To convict the defendant of manslaughter in the second degree under this subsection, as a lesser included offense of murder under count two of the information, the state must prove two essential elements beyond a reasonable doubt. Number one [is] that at the time and place alleged in the information, the defendant caused the death of [the victim], and number two [is] that when the defendant engaged in the conduct that caused the death of [the victim], he did so recklessly.” As part of its charge on carrying a dangerous weapon, the court instructed: “Under General Statutes § 53-206 is provided that any person commits a crime who carries upon his person any knife, the edged portion of the blade of which is four inches or over in length. Under the language of this statute, the offense of carrying a dangerous weapon has two . . . essential elements, which the state must prove beyond a reasonable doubt to obtain a conviction. One [is] that at the time and place alleged in the count in question, the defendant carried a knife upon his person, and number two [is] that the edged portion of the blade of the knife he then carried was greater than four inches in length.”

The court further thoroughly defined each of the elements for both crimes. It is beyond dispute that the offenses charged contain purely distinct elements, and therefore “a conviction of one offense is not inconsistent on its face with an acquittal of the other.” State v. DeCaro, supra, 252 Conn. 244. The defendant’s claim that his conviction of manslaughter in the second degree is legally inconsistent with the judgment of acquittal of carrying a dangerous weapon therefore fails.

The defendant additionally claims that the conviction of manslaughter in the second degree and judgment of acquittal on the charge of carrying a dangerous weapon are logically inconsistent. The crux of the defendant’s claim involves the court’s jury instructions regarding the two crimes. In reference to the charge of manslaughter in the second degree, the court stated that “to establish the first essential element of manslaughter in the second degree, the state must prove beyond a reasonable doubt that by stabbing [the victim] with a knife, if you find that he did so, the defendant contributed directly and materially to [the victim’s] death.” The defendant also emphasizes a particular part of the court’s definition of carrying a dangerous weapon: “[A] person carries a knife when he physically holds it with any part of his body or in his clothing or any package or object or other thing that he then physically possesses. A person carries a knife, by this definition, either when he is standing still or when he is in motion.”

The defendant claims that it would be illogical to convict him of manslaughter in the second degree, due to a stabbing of the victim, yet acquit him of carrying the knife with which the stabbing was presumably committed. To bolster his argument, the defendant quotes from the court’s charge on self-defense: “In essence, what I am saying is that if you have already rejected the defendant’s claim of self-defense as to the charge of murder or manslaughter on any of the alternative bases I have described for you, you must similarly reject any claim of self-defense or justification as to the time when the defendant admittedly held and used the knife, assertedly to defend himself, while he was inside the restaurant.” The defendant appears to argue that the consequence of his conviction of manslaughter in the second degree should have been a conviction of carrying a dangerous weapon, and therefore, the jury’s verdict was logically inconsistent.

Despite the apparent inconsistency, however, it is axiomatic that “[a] factually inconsistent verdict will not be overturned on appeal. On several occasions, [our Supreme Court] has refused to reverse a verdict of guilty on one count where that verdict appeared to be inconsistent with a verdict of acquittal on another count. . . . The law permits inconsistent verdicts because of the recognition that jury deliberations necessarily involve negotiation and compromise. . . . [inconsistency of the verdicts is immaterial. ... As Justice Holmes long ago observed in the case of Dunn v. United States, 284 U.S. 390, 393-94, 52 S. Ct. 189, 76 L. Ed. 356 (1932): The most that can be said in such cases ... is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant’s guilt. We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity. . . . That the verdict may have been the result of compromise, or a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters. . . . State v. Bailey, 209 Conn. 322, 344-45, 551 A.2d 1206 (1988).” (Internal quotation marks omitted.) State v. Knight, 266 Conn. 658, 670, 835 A.2d 47 (2003), quoting State v. DeCaro, supra, 252 Conn. 242-43.

Accordingly, we decline the invitation to “probe into the logic or reasoning of the jury’s deliberations or open the door to interminable speculation”; (internal quotation marks omitted) State v. Hinton, 227 Conn. 301, 313, 630 A.2d 593 (1993); and the defendant’s claim thus fails.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-56 (a) provides in relevant part: “A person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person . . . .”

       General Statutes § 53-206 delineates the punishment for, inter alia, “[a]ny person who carries upon his or her person . . . any knife the edged portion of the blade of which is four inches or over in length . . . .” General Statutes § 53-206 (a).

       Noel Thompson, the proprietor of Carlton’s Jamaican Restaurant, testified that the victim had come to the restaurant the day before the incident seeking employment. Because he was very busy at that time, Thompson told him to come back the next day, a Sunday, when he would be cleaning the restaurant and would have more time to talk. When the victim returned, Thompson took him to the kitchen to talk and see if he was able to cut chicken properly.

       The state cites United States v. Powell, 469 U.S. 57, 66-69, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984), to support its claim that “because a claim of legal inconsistency can only encompass purportedly conflicting convictions, and not a purportedly inconsistent conviction and acquittal,” the defendant’s claim is unreviewable. The state recognizes, however, that there exists ample Connecticut case law that allows the reviewability of such claims. See, e.g., State v. Knight, 266 Conn. 658, 667-68, 835 A.2d 47 (2003); State v. DeCaro, supra, 252 Conn. 244-45; State v. Borrelli, 94 Conn. App. 849, 861-62, 895 A.2d 257 (2006).

       We note that “[t]he requisite state of mind distinguishes murder from manslaughter in the first or second degree. The offense of murder requires that the defendant intentionally cause the death of another . . . while the offense of manslaughter in the first or second degree requires the lesser state of mind of recklessness.” (Citation omitted.) State v. Sotomayor, 61 Conn. App. 364, 380, 765 A.2d 1 (2001), appeal dismissed, 260 Conn. 179, 794 A.2d 996, cert. denied, 537 U.S. 922, 123 S. Ct. 313, 154 L. Ed. 2d 212 (2002).

       The defendant appears to argue that because the state’s information charged him with murder rather than manslaughter in the second degree; see footnote 5; this court cannot compare the elements of the latter with those of carrying a dangerous weapon for purposes of determining whether the conviction was legally inconsistent with the acquittal. We note, however, that manslaughter is a lesser included offense of murder; see, e.g., State v. Cuffee, 32 Conn. App. 759, 761, 630 A.2d 621 (1993) (defendant found not guilty of charge of murder and guilty of lesser included offense of manslaughter in second degree); State v. Riggs, 7 Conn. App. 180, 187, 508 A.2d 67 (jury impliedly found defendant not guilty of murder and found him guilty of lesser included offense of manslaughter in second degree), cert. denied, 200 Conn. 804, 510 A.2d 191, cert. denied, 479 U.S. 852, 107 S. Ct. 183, 93 L. Ed. 2d 118 (1986); and the defendant, having been charged with murder, was on notice that he could be convicted of any of the lesser included offenses. See State v. Ward, 76 Conn. App. 779, 795, 821 A.2d 822 (“defendant is presumed to have notice of lesser included offenses”), cert. denied, 264 Conn. 918, 826 A.2d 1160 (2003). Accordingly, the defendant’s apparent claim is without merit.


author: LAVINE, J.

text:
    LUCY MILAZZO-PANICO v. EDWARD PANICO
    (AC 27215)
    Bishop, Harper and Lavine, Js.
    Submitted on briefs May 25
    officially released August 28, 2007

      William H. Cashman filed a brief for the appellant (defendant).

      Howard M. Gould filed a brief for the appellee (plaintiff).
   Opinion

LAVINE, J.

The defendant, Edward Pánico, appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Lucy Milazzo-Panico. The defendant claims that, in fashioning the child support order, the court improperly determined (1) his earning capacity and (2) the plaintiffs earning capacity. We disagree and, accordingly, affirm the judgment of the trial court.

Following a trial on October 12, 2005, the court dissolved the parties’ marriage on December 8, 2005, rendering an oral decision in which it found the following facts. The parties were married on August 14, 1984, at City Island, New York, and had six children, three of whom were minors residing with the plaintiff at the time of the dissolution. After they were married, the parties operated a carting and demolition business in New York until 1988, when the defendant became a police officer for the city of New York. In 1994, the defendant resigned from the police department after he was convicted of illegal receipt of gratuities.

From 1994 until October 31, 2002, the defendant performed “amorphous” duties for his father, including driving and collecting rents. The defendant testified that in return for providing these services for his father, his father would “help him out by providing cash and property to the defendant and his family.” The defendant’s father’s “largess was sufficient to support this rather large family until the father’s demise in 2002.” In the days before his death in October, 2002, the defendant’s father transferred real estate, bank accounts and stock to the defendant. At the time of the dissolution, the transfer of real property had not been resolved by the estate, and none of the cash had been devised by will or administered by a Probate Court order. The defendant testified that he was unable to recall the amount and source of the accounts that he had received from his father. He admitted to selling real estate he did not own and which, in fact, was an estate asset. The court stated that “[t]here’s virtually no way of tracking funds which were received by the [defendant] from his father, both while he was alive and after his death, except to note that the [defendant] did not need to seek employment from 1994, and until this action commenced, was supporting a wife and six children.”

The plaintiff worked primarily as a homemaker during the marriage and raised the children. She was employed by a casino, however, from August, 2001, to October, 2004. The plaintiff testified that she began her employment at the casino as a blackjack dealer, with a salary of approximately $600 per week or $31,200 per year. She later was given supervisory responsibilities, which resulted in an increase in her salary. When she left her employment at the casino, she was earning a gross yearly salary of approximately $42,000. The plaintiff testified on both direct and cross-examination that were she to return to her employment at the casino, she would not be able to begin as a supervisor but would have to “start at the bottom and work up again.”

Both parties submitted financial affidavits. The plaintiff indicated that she was not employed. The defendant indicated on his affidavit that he was employed as an assistant to the manager at a restaurant with a gross weekly income of $320 or yearly income of $16,640. He reported $439.77 in weekly expenses.

Before rendering its financial orders, the court stated the following. “Both parties are currently underemployed. It may be especially difficult in determining an earning capacity of the defendant, inasmuch as he has not been a real W-2 employee since he left the New York City police department.” The court then concluded that “it would not be unreasonable for this court to determine that both parties have an earning capacity of at least $30,000 per year, gross . . . .” After considering the family support guidelines, the court ordered the defendant to pay the plaintiff $171 per week in child support. This appeal followed. Additional facts will be set forth as necessary.

Our standard of review in family matters is well settled. “An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... It is within the province of the trial court to find facts and draw proper inferences from the evidence 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. . . . [T]o conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Elia v. Elia, 99 Conn. App. 829, 831, 916 A.2d 845 (2007).

The defendant first claims that the court improperly relied on his earning capacity rather than his actual earnings when calculating child support. He argues that “no viable reason exists to find an earning capacity of $30,000 as opposed to his actual earnings of $16,640.” We disagree.

“It is well established that the trial court may under appropriate circumstances in a marital dissolution proceeding base financial awards on the earning capacity of the parties rather than on actual earned income. . . . Earning capacity, in this context, is not an amount which a person can theoretically earn, nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as his vocational skills, employability, age and health.” (Internal quotation marks omitted.) Elia v. Elia, supra, 99 Conn. App. 833. “[I]t also is especially appropriate for the court to consider whether the defendant has wilfully restricted his earning capacity to avoid support obligations . . . .” (Citation omitted; internal quotation marks omitted.) Weinstein v. Weinstein, 280 Conn. 764, 772, 911 A.2d 1077 (2007). Moreover, “[lifestyle and personal expenses may serve as the basis for imputing income where conventional methods for determining income are inadequate.” (Internal quotation marks omitted.) Carasso v. Carasso, 80 Conn. App. 299, 304, 834 A.2d 793 (2003), cert. denied, 267 Conn. 913, 840 A.2d 1174 (2004).

In the present case, the court had evidence before it from which it reasonably could conclude that the defendant’s earning capacity was more than the actual income claimed on his financial affidavit. The financial affidavit reported his net weekly expenses at $439.77, which amounts to roughly $22,000 per year. Moreover, throughout the trial, the court heard extensive testimony regarding the parties’ lifestyle prior to the dissolution and the defendant’s ability to support his family for more than eight years despite the fact that he never was formally employed. The defendant testified that he paid cash for the marital residence and eight motor vehicles. The defendant also testified that prior to the parties’ separation, he kept $350,000 in a safe in the marital residence. The court noted that the defendant was unable to account for and the court was unable to trace large amounts of money transferred to him by his father and that “there are considerable sums of money that may or may not be truly missing.” The defendant’s expenses as listed on his affidavit were in excess of his claimed income, and there was ample evidence presented with regard to the defendant’s ability to provide for his family in the past. We conclude, therefore, that the court’s imputing to him an earning capacity of at least $30,000 was neither contrary to the law nor clearly erroneous.

We similarly are unpersuaded by the defendant’s claim that the court improperly determined the plaintiffs earning capacity. The defendant argues that the court’s finding that the plaintiffs earning capacity was $30,000 is flawed because the plaintiff was a supervisor at the casino earning $42,000 per year when she left her employment.

As stated previously, earning capacity is determined on the basis of what a party reasonably may be expected to earn. See Elia v. Elia, supra, 99 Conn. App. 833. In concluding that the plaintiffs earning capacity was $30,000, the court clearly credited the plaintiffs testimony that she could not return to her employment as a supervisor but would need to “start at the bottom [as a dealer] and work her way up again.” “[W]e do not retiy the facts or evaluate the credibility of witnesses. ... It is the sole province of the trial court to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Citation omitted; internal quotation marks omitted.) Doody v. Doody, 99 Conn. App. 512, 519, 914 A.2d 1058 (2007). Accordingly, the court’s finding regarding the plaintiffs earning capacity was not clearly erroneous.

As the court’s findings regarding the parties’ earning capacities were not clearly erroneous, we conclude that the court did not abuse its discretion in rendering its child support order.

The judgment is affirmed.

In this opinion the other judges concurred.

       In support of his argument, the defendant urges us to analogize this case to several cases in which this court reversed a judgment of dissolution because it determined that financial orders were based on “faulty mathematics.” Our review of the record reveals, however, that the court did not make any mathematical errors when determining the parties’ earning capacities. We conclude, therefore, that the present case and the cases cited by the defendant are factually dissimilar.


text:
    ROY YOUNG v. DEAN VLAHOS ET AL.
    (AC 27324)
    Flynn, C. X, and Lavine and Pellegrino, Js.

      Argued April 23
    officially released August 28, 2007

      Kevin P. Chamberlin, for the appellant-appellee (defendant Call Center Technologies, Inc.).

      Michael R. Kaufman, for the appellee-appellant (plaintiff).
   Opinion

LAVINE, J.

This appeal challenges the damages awarded in the wake of the breach of a commercial lease. The defendant Call Center Technologies, Inc., appeals from the judgment of the trial court awarding damages to the plaintiff, Roy Young, for unpaid rent and attorney’s fees. The defendant claims that the court improperly (1) determined that the plaintiff had standing to bring the action, (2) awarded the plaintiff attorney’s fees, and (3) held it liable for additional rent in the form of water and sewer charges under the terms of the lease. In his cross appeal, the plaintiff claims that the court improperly denied him damages for utility charges he incurred during the defendant’s tenancy at sufferance. We affirm the judgment of the trial court.

The following facts are relevant to the parties’ appeals. On August 1, 2000, pursuant to a written agreement, the defendant leased commercial space located at 559A Federal Road, Brookfield, designated as unit 1010*, from the plaintiff. On December 7, 2000, the parties amended the lease, which required the defendant to move out of unit four by January 31, 2001, and into units two and three on February 1, 2001. The amendment adjusted the monthly rent and stated that all other terms and conditions of the original lease “shall continue in full force and effect as written.” By January 1, 2002, the defendant was in default under the lease for failure to pay rent. On January 29, 2002, the plaintiff served a notice to quit possession on the defendant. After the time to quit possession of the premises had passed and the defendant had failed to vacate, the lessor commenced a summary process action on the basis of nonpayment of rent. The lessor prevailed at trial, and the judgment was upheld on appeal. See Silvermine Investors, LLC v. Call Center Technologies, Inc., 81 Conn. App. 701, 841 A.2d 695 (2004).

On or about February 6, 2002, the plaintiff commenced an action for breach of the lease at issue in the summary process action, claiming that the defendant owed him additional rent and attorney’s fees. On December 16, 2005, in a memorandum of decision, the court awarded the plaintiff $10,459.81 for rent due and $35,992.50 in attorney’s fees related to both the summary process action and the breach of contract action. The defendant filed this appeal on January 4, 2006, and the plaintiff cross appealed. Additional facts will be set forth as necessary.

I

DEFENDANT’S APPEAL

A

The defendant first claims that the court improperly concluded that the plaintiff had standing to bring the action. Specifically, the defendant contends that the court improperly concluded that the plaintiff in this action and the lessor who brought the summary process action are the same party. Alternatively, the defendant claims that the court improperly concluded, pursuant to our General Statutes, that the plaintiff had standing to bring this action in his individual capacity. On the basis of our review of the court’s memorandum of decision, we disagree that the court concluded that the plaintiff had standing to bring the action for the reasons stated by the defendant. We conclude that the court properly determined that the plaintiff was a proper party to this action because the defendant admitted in its answer to the complaint that the plaintiff was the lessor of the subject premises.

Standing is a jurisdictional question that may be raised at any stage of a proceeding. Missionary Society of Connecticut v. Board of Pardons & Paroles, 278 Conn. 197, 201, 896 A.2d 809 (2006). “A determination regarding a trial court’s subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Cardi Materials Corp. v. Connecticut Landscaping Bruzzi Corp., 77 Conn. App. 578, 581, 823 A.2d 1271 (2003). “A party cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.” (Internal quotation marks omitted.) Goodyear v. Discala, 269 Conn. 507, 511, 849 A.2d 791 (2004). “[T]he parties cannot confer subject matter jurisdiction on the court, either by waiver or by consent. . . . Standing [however] is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights.” (Internal quotation marks omitted.) Fleet National Bank v. Nazareth, 75 Conn. App. 791, 793-94, 818 A.2d 69 (2003).

The following facts are relevant to the standing issue. The caption of the underlying action was Roy Young d/b/a Silvermine Investors, LLC v. Dean Vlahos and Call Center Technologies, Inc. Paragraph three of the complaint alleged: “On or about August 1, 2000, the Plaintiff, Roy Young [doing business as] Silvermine Investors, LLC, as lessor, and the [defendant, Dean Vlahos and/or Call Center Technologies, Inc., as lessee, entered into a written lease ... a copy of which is attached hereto as Exhibit A . . . .” In its answer to paragraph three, the defendant alleged: “The Defendant [Call Center Technologies, Inc.] admits only that it, as lessee, and Plaintiff, as lessor, entered into a written lease which is attached to the Complaint as Exhibit A . . . .”

The defendant raised the question of whether the plaintiff had standing to bring the action at trial. It noted that the complaint identified the plaintiff as Roy Young d/b/a Silvermine Investors, LLC, in contrast to the lease, which identifies the lessor simply as Silvermine Investors, LLC. The court found that the defendant had admitted in its answer to paragraph three of the complaint that the plaintiff was the lessor. The court concluded that although the plaintiffs “use of the phrase ‘Roy Young [doing business as]’ seems to be a poor and superfluous choice of words, it did not confuse the defendant and does not rise to the level of a matter of standing. At most, this matter is a ‘circumstantial [defect]’ that should not derail the plaintiffs entire lawsuit.” The court cited General Statutes § 52-123 and Rock Rimmon Grange # 142, Inc. v. The Bible Speaks Ministries, Inc., 92 Conn. App. 410, 414-15, 885 A.2d 768 (2005) (when misnomer does not result in prejudice to party, defect in writ is circumstantial error).

First, we disagree with the defendant that the court concluded that the plaintiff in this action and the lessor who brought the summary process action are the same party. Second, we disagree with the defendant’s claim that the court improperly concluded that the plaintiff had standing to bring this action pursuant to our General Statutes. We agree with the court’s conclusion that the plaintiff had standing to bring this action on the basis of the defendant’s admission in its answer to the complaint and that the defendant was not confused or prejudiced by the name of the entity that brought the action.

“Construction of the effect of pleadings is a question of law and, as such, our review is plenary. . . . Pleadings are intended to limit the issues to be decided at the trial of a case and [are] calculated to prevent surprise. . . . [The] purpose of pleadings is to frame, present, define, and narrow the issues, and to form the foundation of, and to limit, the proof to be submitted on the trial ....

“Accordingly, [t]he admission of the truth of an allegation in a pleading is a judicial admission conclusive on the pleader. ... A judicial admission dispenses with the production of evidence by the opposing party as to the fact admitted, and is conclusive upon the party making it. . . . [The] admission in a pleading or answer is binding on the party making it, and may be viewed as a conclusive or judicial admission .... It is axiomatic that the parties are bound by their pleadings.” (Citations omitted; internal quotation marks omitted.) Rudder v. Mamanasco Lake Park Assn., Inc., 93 Conn. App. 759, 768-69, 890 A.2d 645 (2006) (plaintiffs admitted in answer defendants had easement rights as asserted in counterclaim). “The determination of whether a party’s statement is a judicial admission or an evidentiary admission is a question of fact for the trial court. . . . Even when our review is plenary, factual findings of the trial court that underlie that determination are entitled to the same deference on appeal that other factual findings command.” (Citation omitted; internal quotation marks omitted.) Duplissie v. Devino, 96 Conn. App. 673, 685, 902 A.2d 30 (trial court found defendant admitted plaintiffs cause of action accrued on date certain), cert. denied, 280 Conn. 916, 908 A.2d 536 (2006). Our review of the record discloses that the court’s finding that the defendant admitted that the plaintiff was the lessor of the subject premises is supported by the record. See also Edmands v. CUNO, Inc., 277 Conn. 425, 454, 892 A.2d 938 (2006) (plaintiff admitted in answer to counterclaim that he and corporate entity were liable). “[F]actual allegations contained in pleadings upon which the case is tried are considered judicial admissions and hence irrefutable as long as they remain in the case.” (Internal quotation marks omitted.) Id. Of course, it is true, as the defendant points out, that parties cannot waive the issue of standing. Here, the parties did not waive the plaintiffs standing to initiate the action. By admitting that the plaintiff was the lessor of the premises, the defendant dispensed with the need to prove that fact and its admission was conclusive.

In support of its position on appeal, the defendant has cited a number of Superior Court cases in which the trial courts have granted motions to dismiss actions that were brought in the name of an entity other than that of the limited liability company. See, e.g., Maile v. Webster Bank, N.A., Superior Court, judicial district of New Britain, Docket No. CV-04-0527763-S (February 10, 2005) (action brought in name of member of, not name of, limited liability company); Randolph Foundation v. Appeal from Probate Court of Westport, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-98-0167903-S (April 3, 2001) (plaintiff not legal entity authorized to sue); Crozier v. Gattoni, Superior Court, judicial district of Waterbury, Docket No. CV-97-0142985-S (October 6, 2000) (action brought in name of member of, not name of, limited liability company). Those Superior Court cases stand on a procedural footing different from the case before us. In Crozier, for example, the defendants brought to the court’s attention before they filed an answer to the complaint the fact that the individual plaintiff was not the party with whom they had contracted. The court in that case ruled on a motion to dismiss and was not faced with a judicial admission of a conclusive issue of fact.

Furthermore, we agree with the court that the defendant was not confused by the allegations of the complaint and that the use of “Roy Young d/b/a Silvermine Investors, LLC,” was a circumstantial defect amenable to § 52-123. “Section 52-123 is a remedial statute and therefore must be liberally construed in favor of those whom the legislature intended to benefit. . . . Our Supreme Court has explained that § 52-123 replaces the common law rule that deprived courts of subject matter jurisdiction whenever there was a misnomer ... in an original writ, summons or complaint. . . . When a misnomer does not result in prejudice to a party, the defect in the writ is circumstantial error.” (Citation omitted; internal quotation marks omitted.) Western Boot & Clothing Co. v. L’Enfance Magique, Inc., 81 Conn. App. 486, 492, 840 A.2d 574, cert. denied, 269 Conn. 903, 852 A.2d 737 (2004). The misnomer in this case, which the court described as “a poor and superfluous choice of words,” was “Roy Young d/b/a.” By admitting in its answer that the plaintiff was the lessor, the defendant knew that Silvermine Investors, LLC, was the party in interest.

We conclude, therefore, that the court properly determined that the plaintiff had standing to bring the action and that the circumstantial defect in the complaint did not confuse or otherwise prejudice the defendant.

B

The defendant next claims that the court improperly awarded attorney’s fees to the plaintiff. Specifically, the defendant contends that the court improperly required the defendant to reimburse the plaintiff for attorney’s fees pursuant to a lease that was no longer in effect. We are not persuaded.

Connecticut adheres to the “American rule,” which provides that “attorney’s fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception.” (Internal quotation marks omitted.) Truegreen Landcare, LLC v. Elm City Development & Construction Services, LLC, 101 Conn. App. 11, 14, 919 A.2d 1077 (2007). When a contract expressly provides for the recovery of reasonable attorney’s fees, an award under such a clause requires an evidentiary showing of reasonableness. Buccino v. Cable Technology, Inc., 25 Conn. App. 676, 679, 595 A.2d 376 (1991). “A trial court may rely on its own general knowledge of the trial itself to supply evidence in support of an award of attorney’s fees. . . . The amount of attorney’s fees to be awarded rests in the sound discretion of the trial court and will not be disturbed on appeal unless the trial court has abused its discretion.” (Citation omitted; internal quotation marks omitted.) Id. “Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law . . . .” (Internal quotation marks omitted.) Krasowski v. Fantarella, 51 Conn. App. 186, 199-200, 720 A.2d 1123 (1998), cert. denied, 247 Conn. 961, 723 A.2d 815 (1999).

“Service of a notice to quit possession is typically a landlord’s unequivocal act notifying the tenant of the termination of the lease.” Housing Authority v. Hird, 13 Conn. App. 150, 155, 535 A.2d 377, cert. denied, 209 Conn. 825, 552 A.2d 433 (1988). Upon service of a notice to quit possession, the lease is terminated and a tenancy at sufferance is created. Id. Termination of a lease, while releasing a tenant from his obligations under the lease, does not leave the landlord without legal recourse to recover damages. Rokalor v. Connecticut Eating Enterprises, Inc., 18 Conn. App. 384, 389, 558 A.2d 265 (1989). “A landlord’s termination of a tenant’s possessory rights, based on breach of a rental covenant, will not be construed as a waiver of the landlord’s rights under the lease.” Zitomer v. Palmer, 38 Conn. Sup. 341, 344, 446 A.2d 1084 (1982). The measure of damages awarded “should place the injured party in the same position as he would have been in had the contract been fully performed.” Rokalor v. Connecticut Eating Enterprises, Inc., supra, 389.

The defendant has argued that because the present action seeks to recover expenses related to the period of time the defendant occupied the premises after the plaintiff terminated the lease, or when the defendant was a tenant at sufferance, the plaintiff is not contractually entitled to attorney’s fees. Relying on Buccino v. Cable Technology, Inc., supra, 25 Conn. App. 679, the defendant maintains that any lease providing for attorney’s fees is unenforceable once it has been terminated. In Buccino, however, the lease provided that attorney’s fees were recoverable only when the lessors were required to employ an attorney to enforce a provision of the lease. Id.

In the case before us, the lease provides: “If either the Lessee or the Lessor shall at any time be in default hereunder . . . and if the other party . . . shall institute an action of summary process against the defaulting party based upon such default, or otherwise employ the services of an attorney in regard to said default, then the defaulting party will reimburse the Lessor or the Lessee, as the case may be, for the expense of attorney’s fees and disbursements thereby incurred by the nondefaulting party, so far as the same are reasonable in amount.” The lease does not limit the recovery of attorney’s fees to those fees incurred to enforce provisions of the lease and, thus, is distinguishable from the lease in Buccino. The court, therefore, properly determined that the plaintiff was entitled to attorney’s fees.

In awar ding attorney’s fees, the court took notice of the summary process action, the language of both the lease and the complaint and the terms of the lease itself. After tallying the amount of attorney’s fees requested, the court reduced the amount by 20 percent because the “lack of clarity in the lease contributed to some of the litigation” and denied any attorney’s fees associated with the drafting of the complaint, which had been the source of innumerable problems. The court also denied the plaintiff certain costs incurred in the summary process action, as they were not alleged in the complaint.

We conclude that the court properly concluded that the plaintiff was entitled to attorney’s fees and properly exercised its sound discretion in determining the amount of attorney’s fees it awarded.

C

The defendant’s last claim is that the court improperly found it liable for “additional rent” consisting of sewer and water charges during its tenancy at sufferance. Specifically, the defendant asserts that a tenant at sufferance cannot be held liable for rental charges incurred during its tenancy at sufferance. We do not agree.

We generally review a court’s award of damages under the abuse of discretion standard. When, however, a damages award is challenged on the basis of a question of law, our review is plenary. Motherway v. Geary, 82 Conn. App. 722, 726, 846 A.2d 909 (2004).

As noted in part I B, “A landlord’s termination of a tenant’s possessory rights, based on breach of a rental covenant, will not be construed as a waiver of the landlord’s rights under the lease.” Zitomer v. Palmer, supra, 38 Conn. Sup. 344; see Club Road Corp. v. Whitehead, 34 Conn. Sup. 580, 583, 378 A.2d 110 (1977). The measure of damages awarded should place the injured party in the same position as the party would have been in had the contract been performed fully. Rokalor v. Connecticut Eating Enterprises, Inc., supra, 18 Conn. App. 389. Here, the court found that § 4 of the lease identified water and sewer charges as “additional rent” and declared that under the basic contract principles articulated in Rokalor, the plaintiff was entitled to posteviction damages in proven charges for water usage, sewer usage and sewer assessments.

To support its claim that it should not be held liable for the additional rent consisting of sewer and water charges, the defendant asserts that according to Welk v. Bidwell, 136 Conn. 603, 609, 73 A.2d 295 (1950), a tenant at sufferance cannot be held hable for charges incurred during its tenancy at sufferance. The “tenant at sufferance . . . was not hable for any stipulated rent. . . . His obhgation was to pay the reasonable rental value of the property which he occupied.” Id. The defendant’s reliance on Welk is misplaced. In Welk, the landlord terminated the lease of a nondefaulting tenant before the lease had expired. Id., 607. Here, the plaintiff terminated the lease because of the tenant’s default. Although not recoverable as such, rent specified in a lease may be used by the court in calculating the losses suffered by the plaintiff by reason of the defendant’s breach of the lease. General Statutes § 47a-26b (c) provides in relevant part that “[t]he last agreed-upon rent shall be prima facie evidence of the fair rental value of the premises. The party claiming a different amount shall have the burden of proving that the last agreed-upon rent is not the fair rental value. ...”

The defendant has offered no evidence that the agreed upon rent in this case was not the fair rental value of the premises. The court concluded that there was no use and occupancy figure with which to “form a baseline for the defendant’s liability or setoff in this case.” The court calculated its award of the additional rent by considering the lease, the facts of the case and the absence of evidence that the defendant had set any use and occupancy rate or paid any use and occupancy fee.

Our review of the record leads us to conclude that the court properly determined that additional rent was due the plaintiff and properly calculated the amount of additional rent.

II

PLAINTIFF’S CROSS APPEAL

In his cross appeal, the plaintiff asserts that the court improperly determined that the defendant was not obligated under the lease to pay for natural gas charges incurred by the plaintiff after the lease was terminated because the defendant was bound (1) to purchase natural gas for its benefit and (2) to prevent damage to the premises if they were not heated. The court concluded that the plaintiff failed to show by a fair preponderance of the evidence that the defendant was liable to him for natural gas charges incurred during the tenancy at sufferance. We disagree with the plaintiffs claim.

When a damages award is challenged on the basis of a question of law, our review is plenary. Motherway v. Geary, supra, 82 Conn. App. 726. A lease is subject to the same rules of construction as other contracts. Middlesex Mutual Assurance Co. v. Vaszil, 279 Conn. 28, 35, 900 A.2d 513 (2006). We apply the clearly erroneous standard to the court’s fact-finding. Putnam Park Associates v. Fahnestock & Co., 73 Conn. App. 1, 11, 807 A.2d 991 (2002).

In denying the damages at issue, the court examined not only the provisions of the lease but also the complaint. “It is fundamental in our law that the right of a plaintiff to recover is limited to the allegation of [its] complaint. . . . The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise. . . . [T]he interpretation of pleadings is always a question of law for the court. . . . Our review of the trial court’s interpretation of the pleadings therefore is plenary.” (Citations omitted; internal quotation marks omitted.) Suffield Development Associates Ltd. Partnership v. National Loan Investors, LP, 97 Conn. App. 541, 562, 905 A.2d 1214, cert. denied, 280 Conn. 942, 943, 912 A.2d 479 (2006). “It is axiomatic that the parties are bound by their pleadings.” (Internal quotation marks omitted.) Colliers, Dow & Condon, Inc. v. Schwartz, 88 Conn. App. 445, 455, 871 A.2d 373 (2005).

Paragraph five of the complaint alleged: “Further, as additional rent, the Lease purports the Defendant-Lessor to procure and pay the cost of all gas, oil, heat, electric, telephone, power, air-conditioning, interior trash removal, and other utilities.” In its memorandum of decision, the court stated: “The lease does not identify natural gas charges as ‘additional rent,’ but rather, in paragraph nineteen, states only that the lessee shall pay for its own gas and other utilities. Although it is understandable that the plaintiff chose to ensure that the rented space remain heated when the defendant failed to pay for the necessary gas heat, neither the lease nor the complaint makes it clear that the defendant is liable for the gas bills under these circumstances.”

Faced with the unclear allegations of the complaint and the provisions of the lease, the court properly applied the well established rule that ambiguous language should be construed against the drafter. See R. T. Vanderbilt Co. v. Continental Casualty Co., 273 Conn. 448, 465 n.25, 870 A.2d 1048 (2005). Because the plaintiff drafted both the lease and the complaint, the court properly construed them in favor of the defendant. See, e.g., Goldberg v. Hartford Fire Ins. Co., 269 Conn. 550, 562, 849 A.2d 368 (2004) (ambiguity construed against party that drafted instrument).

On the basis of our review of the relevant provisions of the lease, the pleadings and the facts in the record, we conclude that the court properly determined that the plaintiff failed to prove by a fair preponderance of the evidence that the defendant was liable to him for natural gas charges that he incurred during the tenancy at sufferance.

The judgment is affirmed.

In this opinion the other judges concurred.

       Dean Vlahos and Call Center Technologies, Inc., were the defendants in the trial court. The court rendered judgment in favor of Vlahos, who is not a party to this appeal. In this opinion, we refer to Call Center Technologies, Inc., as the defendant.

       The lease, which was admitted into evidence, was signed as follows: “Lessor, Silvermine Investors, LLC ... By Roy Young,” and, “Call Center Technologies, Inc. Lessee, By Dean Vlahos, President.”

       General Statutes § 52-123 provides: “No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person andthe cause might be rightly understood and intended by the court.”

       In its appellate brief, the defendant contends that the plaintiff is not a proper party to this action pursuant to General Statutes §§ 34-134, 34-186 and 34-187. It concedes, however, that it did not raise this claim at trial. Although this claim concerns the construction of statutes, which is a question of law that we may address on appeal even without the benefit of the trial court’s analysis; see State v. Crespo, 246 Conn. 665, 687, 718 A.2d 925 (1998), cert. denied, 525 U.S. 1125, 119 S. Ct. 911, 142 L. Ed. 2d 909 (1999); we need not reach this claim because we have concluded that the defendant admitted that the plaintiff was the lessor, which is the relevant allegation in the complaint.

       Our review of the lease reveals one provision entitled “additional rent,” which refers only to the cost of insurance. Paragraph four of the lease mentions additional rent in the context of a holdover period prior to the expiration of the lease.