author: PER CURIAM.

text:
    JEAN-PIERRE IBAR ET AL. v. STRATEK PLASTIC LIMITED ET AL.
    (AC 35011)
    Lavine, Alvord and Schaller, Js.
    Argued June 3
    officially released September 3, 2013

      Jean Pierre Ibar, self-represented, the appellant (named plaintiff).

      Timothy W. Donahue, for the appellee (named defendant).
   Opinion

PER CURIAM.

In this breach of contract action, the plaintiff Jean-Pierre Ibar appeals from the judgment of the trial court directing a verdict in favor of the defendant Stratek Plastic Limited (Stratek). On appeal, Ibar’s principal claim is that the court erred in directing a verdict for Stratek and denying his motion to set aside the directed verdict. Ibar also claims that the trial judge was not “independent and unbiased” and, farther, that he suffered prejudice due to the improper administrative handling of this case by judicial branch personnel. We affirm the judgment of the trial court.

The record discloses the following relevant facts, which we construe in the light most favorable to Ibar. See Levesque v. Bridgeport Hospital, Inc., 286 Conn. 234, 253, 943 A.2d 430 (2008). On July 4, 1999, Ibar, a scientist and inventor, entered into a shareholder agreement with Jose Luis Turullols. Pursuant to this agreement, Ibar and Turullols, who represented himself and a group of investors, agreed to form a company to investigate, develop, and market Ibar’s technology. The parties thereafter formed a corporation called Plasti-tech Ltd. (Plastitech) for this purpose in August of 1999 on the Isle of Man. By 2002, however, Plastitech needed additional funding. An investment firm located in Spain called Torreal S.A. (Torreal) agreed to invest $5.5 million but would not invest in Plastitech because it was an off-shore company. Stratek was therefore formed in April of 2002 in Dublin, Ireland. According to the articles of association, Stratek was a private company limited to fifty members. The board of directors of Stratek was responsible for managing the company.

At the same time that Stratek was formed, several other contracts were signed. Torreal, Stratek, and the individual and corporate shareholders of Stratek, including Turullols and Plastitech, entered into an agreement dated April 18, 2002. Pursuant to this agreement, following Torreal’s investment, Torrea! owned a 10 percent interest in Stratek and Plastitech owned a 40.5 percent interest in Stratek. Also on April 18, 2002, Ibar and Stratek signed a services agreement pursuant to which Ibar became the director of technology for Stratek. Finally, on the same date, Ibar assigned his interest in various patents to Stratek, pursuant to a written patent assignment agreement.

Following the formation of Stratek, the operation moved to Wallingford. By 2006, Stratek was having financial difficulties. On July 7, 2006, Alan Stall was appointed chief executive officer of Stratek. On November 16, 2006, Stratek terminated Ibar’s position as director of the company. Ibar then commenced the present action, which was consolidated and tried to a jury with Stratek Plastic Ltd. v. Ibar, 145 Conn. App. 414, 74 A.3d 577 (2013), a fraudulent conveyance action that we also decide today.

In the present action, Ibar’s amended one count complaint alleged that “[he] seeks compensation and punitive damages, attorney’s fees, costs . . . and such other relief as the court may deem appropriate [for] . . . Stratek’s defrauding of Ibar’s ownership in Stratek pursuant to the initial agreements of July 4, 1999. Ibar is contracted to have [40.5] percent of the shares of a corporation that owns and commercializes Ibar’s inventions. Stratek owns and commercializes Ibar’s inventions, yet Ibar owns zero of Stratek or of any company owning stock in Stratek.” At the conclusion of Ibar’s evidence, Stratek moved for a directed verdict, essentially arguing that Ibar had not produced evidence of a contractual agreement between the parties regarding Ibar’s ownership of shares in Stratek. Following oral argument, the court issued a written opinion granting Stratek’s motion for a directed verdict due to Ibar’s failure to present a prima facie case of breach of contract. Specifically, the court found that the evidence introduced in Ibar’s case did not establish that there was an express contract between the parties that Ibar would receive 40.5 percent of the shares of Stratek in his name. The court also held that Ibar’s claim was time barred. The court subsequently denied Ibar’s motion to set aside the verdict, and Ibar filed the present appeal.

I

Before addressing the merits of Ibar’s principal claim on appeal, we consider his claim that Judge Robinson was not an independent and unbiased trial judge.

The following facts are necessary for the resolution of this claim. On September 27, 2010, Judge Robinson denied Ibar’s application for a prejudgment remedy in this matter. In her decision denying the motion for prejudgment remedy, the court stated in part: “Notwithstanding Ibar’s assertion that the issue of standing has been previously decided, this court finds that no trial court has decided this issue of standing before. But, even if it had been previously raised, the law of the case doctrine would not preclude the trial court from revisiting this issue. . . . The plaintiff will likely be found to lack standing to assert claims on behalf of Plastitech. Therefore the prejudgment remedy should be denied.” (Citation omitted.)

Stratek subsequently filed a motion to dismiss, arguing that Ibar lacked standing to assert the claims alleged. In denying this motion to dismiss, the court, Burke, J., noted that “prior to Judge Robinson’s decision, and unbeknown to her due to an error in the case docket, the issue of standing had been decided. Judge Alander, in deciding [Stratek’s] second motion to dismiss for lack of standing, held that [Ibar] is not ‘asserting a right on behalf of a corporation. He’s asserting his own right to [45] percent of the stock in the corporation that is commercializing his invention. . . . [H]e’s claiming ... he, personally, had this agreement and it was breached. That’s . . . how I read paragraph 13 [of the complaint].’ ” Judge Burke therefore denied Stratek’s motion to dismiss.

On February 6, 2012, Ibar filed a motion to disqualify Judge Robinson, asserting, inter alia, that he believed she had “preconceived notions about this case, which will affect her judgments as the gatekeeper of the evidence and this will prejudice [him].” The court held a hearing and subsequently denied the motion, stating: “I do not hear a basis which would be appropriate for me to recuse myself or to disqualify myself on this particular file.” On appeal, Ibar challenges the court’s decision denying his motion to recuse and further argues that the court exhibited questionable behavior toward him during the course of the trial.

“The inquiry into whether a motion for disqualification properly was ruled upon is governed by the abuse of discretion standard of review. ... In applying that standard, we ask whether an objective observer reasonably would doubt the judge’s impartiality given the circumstances. ... If an objective observer, in view of all the facts would reasonably doubt the court’s impartiality, the court’s discretion would be abused if a motion to recuse were not granted. In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. ” (Citation omitted; internal quotation marks omitted.) McKenna v. Delente, 123 Conn. App. 137, 143-44, 1 A.3d 260 (2010).

Ibar offered no evidence to support his contention that Judge Robinson had “preconceived notions about this case.” Although Judge Robinson previously had denied Ibar’s application for a prejudgment remedy, “the fact that a trial court rules adversely to a litigant, even if some of these rulings were determined on appeal to have been erroneous, [still] does not demonstrate personal bias.” (Internal quotation marks omitted.) Burns v. Quinnipiac University, 120 Conn. App. 311, 317, 991 A.2d 666, cert. denied, 297 Conn. 906, 995 A.2d 634 (2010). With regard to the issue of standing, Judge Robinson explained that she was unaware of Judge Alander’s prior decision when she stated that Ibar likely would be found to lack standing to assert claims on behalf of Plastitech. That being said, she also acknowledged that Judge Alander’s decision was the law of the case and that Ibar would have the opportunity to present his direct claim to the jury. In the absence of any evidence requiring the recusal of Judge Robinson in this matter, Judge Robinson was required to hear and decide this case. See Rule 2.7 of the Code of Judicial Conduct (“[a] judge shall hear and decide matters assigned to the judge, except when disqualification is required by Rule 2.11 or other law”). We, therefore, reject the contention that the court abused its discretion in denying the motion to recuse in this matter.

II

We next briefly address Ibar’s claim that he suffered prejudice due to the improper administrative handling of this case by the judges of the Superior Court as well as judicial branch personnel.

Ibar contends that, despite his efforts to correct the record, the errors in the electronic docket rendered it “confusing and unusable.” He argues that he was harmed by the errors and the lack of action by the judges and court clerks to correct the errors. He also takes issue with the assignment of the prejudgment remedy hearing to Judge Robinson, and questions certain rulings made by the court at that proceeding.

We note that this is a large case file with close to two hundred docket entries. It is difficult to discern exactly how Ibar claims he was prejudiced by its handling. On the basis of our review of this file, however, we cannot conclude that Ibar was prejudiced by the manner in which this case was handled. During the trial in this matter, Ibar was given every opportunity to present evidence establishing that he had a contract with Stratek. That Ibar was unable to do so was not the fault of the judges and court clerks who were responsible for the administrative handling of this case.

Ill

We now address Ibar’s claims that the court erred in directing a verdict for Stratek and denying his motion to set aside the verdict.

“We begin our analysis with the standard of review of a trial court’s decision to grant a motion for a directed verdict. Whether the evidence presented by the plaintiff was sufficient to withstand a motion for a directed verdict is a question of law, over which our review is plenary. . . . Directed verdicts are not favored. . . . A trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion. ... In reviewing the trial court’s decision to direct a verdict in favor of a defendant we must consider the evidence in the fight most favorable to the plaintiff. . . . Although it is the jury’s right to draw logical deductions and make reasonable inferences from the facts proven ... it may not resort to mere conjecture and speculation. ... A directed verdict is justified if . . . the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party.” (Citation omitted; internal quotation marks omitted.) Curran v. Kroll, 303 Conn. 845, 855-56, 37 A.3d 700 (2012).

We set forth the following legal principles that are relevant to Ibar’s claim of breach of contract. “The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.” (Internal quotation marks omitted.) Keller v. Beckenstein, 117 Conn. App. 550, 558, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009). “[I]n order to form a binding and enforceable contract, there must be an offer and an acceptance based on mutual understanding by the parties. . . . The mutual understanding must manifest itself by a mutual assent between the parties.” (Internal quotation marks omitted.) Housing Authority v. DeRoche, 112 Conn. App. 355, 370, 962 A.2d 904 (2009).

In the present case, Ibar argued that he was entitled to 40.5 percent of the shares in Stratek. During oral argument on Stratek’s motion for a directed verdict, the court repeatedly asked Ibar to point to the evidence proving that the parties had an agreement concerning Ibar’s ownership of stock in Stratek. Ibar initially argued that it was one of the agreements that was executed in 2002 when Stratek was created. Ibar later appeared to rely on the 1999 shareholder agreement between Ibar and Turullols. In his memorandum of law in support of the motion to set aside the verdict, Ibar indicated that his argument was not that the 1999 agreement applied to Stratek, but rather, that Stratek agreed to certain terms of the 1999 agreement pertaining to percentage of shares and voting power. Under any of these scenarios, we conclude that the court properly directed a verdict for Stratek on the basis of Ibar’s failure to present a prima facie case of breach of contract.

It is undisputed that the signatories to the 1999 agreement were Ibar and Turullols, who represented himself and a group of investors. Stratek was not a party to the 1999 agreement. In fact, Stratek was not formed until 2002 so it could not have been a party to this agreement. Ibar relied, however, on a series of e-mail communications and faxes from Turullols, whom he referred to as the “managing director” of Stratek, as proof that Stratek agreed to be bound by the 1999 shareholder agreement. Contrary to Ibar’s claim, this evidence did not establish that Stratek ratified the 1999 agreement. Nowhere in any of these documents did Turullols indicate that he was acting on behalf of Stra-tek. Although Ibar argued that Turullols sent these communications in his capacity as managing director of Stratek, the letters are not on Stratek letterhead. Most of the letters are addressed to Ibar informally as “Apy” and are signed simply by “Jose Luis.” Furthermore, although Ibar argued that Turullols was managing director of Stratek, and therefore had the authority to bind the company, he did not present evidence to support this argument. Ibar did not call Turullols or any other individual from Stratek as a witness in this case, even though Turullols and Stall were present for the entire trial.

More problematic for Ibar, however, is the fact that most of these communications predated the formation of Stratek in 2002 and some even predated the formation of Plastitech in 1999. The only communication that Ibar offered that was written after the formation of Stratek was exhibit 14. According to Ibar, this document, which was prepared in 2006, reflected the evolution of shares in Plastitech from 1999 to 2001 and in Stratek from 2002 to 2006. Ibar argued that this document established that Stratek agreed to be bound by the 1999 agreement. Contrary to Ibar’s argument, however, this document was not evidence of a contract between Ibar and Stratek pursuant to which Ibar would individually retain shares in Stratek.

Assuming, arguendo, that these e-mails and faxes established that Turullols as managing director of Stra-tek agreed to the terms of the 1999 agreement, Ibar failed to present any evidence that Stratek ratified any promises made by Turullols with regard to Ibar’s ownership interest and control over Stratek. Stratek’s articles of association are detailed and provide that the business of Stratek shall be managed by the board of directors. There is no indication in the articles that Stratek agreed to be bound by the 1999 agreement, nor is there any provision that gives a director the power to enter into contracts on behalf of the corporation. While these e-mails establish that Ibar and Turullols had discussions for several years regarding Ibar’s interest in Plastitech and Stratek, they do not establish the existence of a contract between Ibar and Stratek. We conclude, therefore, that the trial court properly directed a verdict in favor of Stratek in this breach of contract action.

The judgment is affirmed.

       Ibar filed this action as a self-represented party on his own behalf and on behalf of Eknet Research Corporation against Stratek and Stamford Polymer Research Laboratory, Inc. Because a valid appearance was never entered on behalf of Eknet Research Corporation, we refer to Ibar as the plaintiff. On September 15, 2009, the court, Holden, J., dismissed the action as to Stamford Polymer Research Laboratory, Inc. Ibar thereafter withdrew the action as to that defendant. We, therefore, refer to Stratek as the defendant.

       Ibar framed this issue as follows: “Whether the Hon. Angela Robinson acted as an independent and unbiased judge in handling case CV-08-502-3192-S prior to and during the trial of the two consolidated cases CV-07-5010242 and CV-5023192-S?”

       Stratek contends that we should not consider any of the issues raised on appeal because Ibar failed to comply with the rules of appellate procedure. Specifically, Stratek contends that Ibar improperly incorporated the arguments from his trial court briefs within his brief to this court. Stratek also argues that Ibar failed to comply with the requirements of Practice Book § 67-4 (d) (3), which provides the procedure for briefing claims of evidentiary error. Finally, Stratek contends that Ibar’s brief contains unsubstantiated allegations and characterizations of the trial court proceedings. We initially note that Ibar’s request for permission to file an oversized brief was granted by this court. Further, we have reviewed Ibar’s brief and have discerned what we believe are the principal claims on appeal. We will, therefore, proceed to review the claims on the merits. See Kopylec v. North Branford, 130 Conn. App. 146, 148 n.1, 23 A.3d 51, cert. granted on other grounds, 302 Conn. 930, 28 A.3d 346 (2011) (appeal withdrawn March 14, 2012).

       In 2008, the parties participated in an arbitration proceeding involving the same underlying facts. The court in this matter ordered that certain findings of fact that had been included in the decision of the arbitration panel would be submitted to the jury as undisputed facts.

       The agreement provided, in part, as follows:
      “Representations:
      “Mr. Ibar is the sole owner of all proprietary rights embodied in U.S. Patent no 5,885,495, patent application no EL 051860613 US, and others related to the invention presently known as ‘EZ-Flow processing’ or ‘methods and apparatus to control viscosity of molten plastics.’ These rights include, but are not limited to, copyrights, trade secrets, formulas, research data, knowhow and specifications.

        “Mr. Jose Luis Turullols represents himself and a group of investors (‘The founders’) which jointly contribute US $600,000 (six hundred thousand).
      “The agreement:
      “1. The parties agree to incorporate a company, to investigate, develop and market the above methods, to which Mr. Ibar transfers all of the aforementioned rights and Mr. Turullols the US $600,000.
      “2. Once the company is in operations, Mr. Ibar will have the right to 16% of the gross revenues arising from royalties’ income calculated at the source, and to 3% of the gross revenues arising from the sale of goods and services also calculated at the source.
      “3. The stock will be distributed as follows:
      Dr. Ibar 45%
      Promoter, Mr. Turullols 5%
      Founders 50%
      Total 100%
      “4. In the event that new issues of capital stock are voted, the company will reserve for Mr. Ibar the sufficient number of shares so Mr. Ibar will be able to maintain 61% of the capital stock. This stock will be purchased by Mr. Ibar with proceeds from dividends distribution.

      “By the date specified below, Mr. Turullols agrees to grant Mr. Ibar the voting power of sufficient number of shares in the company formed to investigate, develop and subsequently market, the invention known as ‘EZ-Flow processing’ or ‘methods and apparatus to control viscosity of molten plastics’, so Mr. Ibar can maintain 51% of the said voting power.”

       The trial court noted that there were two companies formed by Ibar and others using the name “Stratek,” but for purposes of its decision, reference to “Stratek” meant the defendant. The other company was called “Stratek of London.” For purposes of this opinion, references to “Stratek” also refer to the defendant.

       On September 15, 2009, the trial court, Holden, J.t dismissed all but one paragraph of Ibar’s complaint on the ground that those allegations arose out of the same facts alleged in a prior action brought by Ibar against Stratek, which had been resolved in arbitration. The remaining paragraph alleged breach of the July 4, 1999 shareholder agreement. On March 7, 2012, prior to Ibar resting his case, the court allowed Ibar to amend his complaint to change the percentage from 45 percent as originally alleged, to 40.5 percent.

       On appeal, Ibar contends that the court did not give his arguments full consideration. The record reflects, however, that the court heard argument on Stratek’s motion for directed verdict on Friday, March 9, Monday, March 12, and Tuesday, March 13,2012. In addition, the court heard oral argument on Ibar’s motion to set aside the verdict and considered the briefs filed by the parties on this issue. Contrary to Ibar’s claim, the court repeatedly provided him with the opportunity to defend against Stratek’s motion for a directed verdict and to argue his position with regard to the motion to set aside the verdict.

       On November 8, 2010, the court, Silbert, J., granted Ibar’s motion to correct the record to reflect that Judge Alander had denied Stratek’s motion to dismiss on November 30, 2009.

       In denying the motion, Judge Robinson stated: “Judge Alander’s ruling is the law of the case, and that is that Mr. Ibar has an opportunity to present his direct claim to the jury. That was certainly something that I did not know when I did the prejudgment remedy hearing and, so, I came out a different way on the standing issue, but I didn’t decide the standing issue, I just said it was likely to come out a different way in my view. But Judge Alander’s ruling is absolutely the law of the case and that is the case that’s going to the jury.”

       As part of the argument that Judge Robinson did not act as an independent and unbiased trial judge, Ibar claims that Judge Silbert, who selected Judge Robinson to preside at this trial, “control[led] the strategy and the proceedings without appearing on the front line.” He also argues that Judge Robinson’s interactions with his attorney indicated bias on her part. We simply note that none of these extravagant claims is supported in the record.

       As part of this argument, Ibar challenges the decision of the trial court to bifurcate the issues at trial. On the basis of our review of the record, we conclude that the court did not abuse its discretion in bifurcating the issues at trial following lengthy and complicated pretrial proceedings. See Saczyn-ski v. Saczynski, 109 Conn. App. 426, 428-29, 961 A.2d 670 (2008).

       The transcript reveals the following:
      “The court: So you’re saying it was a hybrid contract and you’re saying it was entered into when? When was the contract entered into?
      “[Counsel for Ibar]: 2002.
      “The court: When in 2002; before the formation of Stratek, after the formation of Stratek?
      “[Counsel for Ibar]: April 18th when the—Stratek was formed.
      “The court: So you’re saying this was one of the agreements that was executed when the company was formed?
      “[Counsel for Ibar]: Yes, your Honor.”

       The transcript reveals the following:
      “[Counsel for Ibar]: I think that the jury should be able to decide whether or not when the—um—Stratek incorporated the—the company itself and they made Mr. Ibar a shareholder through Plastitech whether that was a breach of the contract.
      “The court: What contract are we talking about now?
      “[Counsel for Ibar]: The initial shareholder contract.”

       The memorandum of law states: “[Ibar] is not suggesting that the 1999 Shareholder Agreement applied to Stratek, but [Ibar] does contend that Stratek agreed to certain terms of the 1999 agreement, specifically, that it would continue to honor the provisions that provided for percentage of shares, voting power, and royalties, although royalties are not part of this case.”

       The court noted the problems it was having trying to discern the exact nature of Ibar’s claims, stating: “I believe that it is fair to say that this has been an atypical, and unusually confusing case. By the time the trial of the consolidated matters began on February 28, 2012, the parties appeared at trial with hundreds of exhibits and it was never entirely clear where [Ibar] was headed. On February 22, 2012, [Ibar’s] counsel indicated to the court and opposing counsel that he would be pursuing an Implied Contract theory relying largely upon the 1999 Shareholder Agreement. Then, on March 7, 2012, [Ibar] filed ‘An Amended Jury Instruction’ stating he would pursue an express contract claim arguing that shares to Plastitech were to remain at 40.5 percent under the Agreement with Stratek. Then, in opposition to the Motion for Directed Verdict on March 12, 2012, [Ibar’s] counsel argued that the claim is that [Ibar] was to have 40.5 percent of the shares in Stratek in his own name. Finally, on March 13, 2012, [Ibar’s] counsel argued that the breach of contract occurred in November 2006, when the share of Plastitech fell below 39 percent level, in violation of the 1999 Shareholder Agreement.”

       In Ibar’s objection to Stratek’s motion for directed verdict, he cited to two power point slides that referred to Turullols as managing director. The court noted, however, that these items were marked for identification only; they were not full exhibits.

       We note Ibar’s contention that the court improperly found, as an undisputed fact, that he owned Plastitech, which owned shares in Stratek. As noted by the trial court, however, whether Ibar owned Plastitech was not dispositive of Stratek’s motion for a directed verdict.

       In light of our conclusion that the court properly directed a verdict for Stratek on the basis of the failure to establish the existence of a contract, we need not consider the trial court’s additional conclusion that the action was barred by the statute of limitations.


source: Caselaw Access Project

license: Public Domain

text:
    STRATEK PLASTIC LIMITED v. JEAN-PIERRE IBAR ET AL.
    (AC 34458)
    Lavine, Alvord and Schaller, Js.

      Argued June 3
    officially released September 3, 2013

      Jean-Pierre Ibar, self-represented, the appellant (named defendant).

      Timothy W. Donahue, with whom, on the brief, was Colleen Noonan Davis, for the appellee (plaintiff).
   Opinion

PER CURIAM.

In this fraudulent conveyance action, the defendant Jean-Pierre Ibar (Ibar) appeals from the judgment of the trial court, rendered following a jury trial, in favor of the plaintiff, Stratek Plastic Limited (Stratek). On appeal, Ibar claims that the court improperly charged the jury regarding the standard of proof that is required in a fraudulent conveyance action and informed the jury that it had directed a verdict in favor of Stratek in a companion case. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. Stratek brought this action alleging that on September 19, 2006, Ibar conveyed his interest in certain real property in Wallingford to Christine Ibar, in violation of the Uniform Fraudulent Transfer Act, General Statutes § 52-552a et seq. Stratek alleged that the conveyance was done with the intent to hinder, delay or defraud Stratek. The present case was consolidated and tried with Ibar v. Stratek Plastic Ltd., 145 Conn. App. 401, 76 A.3d 202 (2013). That case, which we also decide today, involved Ibar’s claim that Stratek breached its contract with him regarding ownership of shares in Stratek. At the conclusion of Ibar’s evidence in the breach of contract case, the court granted Stratek’s motion for a directed verdict. The present action, however, was submitted to the jury, which returned a verdict in favor of Stratek. The court rendered judgment in accordance with that verdict and Ibar filed the present appeal.

I

Ibar first claims that the court erred by failing to charge the jury that the standard of proof required in a fraudulent conveyance action is clear, convincing and unequivocal evidence. Ibar further contends that the court should have contrasted the heightened standard of proof required for a fraudulent conveyance case with the usual preponderance of the evidence standard. We disagree.

“The trial court has wide discretion in charging the jury. Our standard of review concerning claims of instructional error is well settled. [J]ury instructions must be read as a whole and . . . are not to be judged in artificial isolation from the overall charge. . . . The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict .... The trial court must adapt its instructions to the issues raised in order to give the [jurors] reasonable guidance in reaching a verdict and not mislead them.” (Internal quotation marks omitted.) Rua v. Kirby, 125 Conn. App. 514, 516-17, 8 A.3d 1123 (2010).

In the court’s preliminary charge to the jury, prior to the presentation of evidence in either case, the court instructed the jury that in civil cases, the plaintiff bears the burden of proving the plaintiffs claims by a preponderance of the evidence. In its final charge to the jury, the court instructed the jury, in accordance with Ibar’s request, that Stratek had to prove its case by clear, precise and unequivocal evidence. This is a correct statement of the law; see Certain Underwriters at Lloyd’s, London v. Cooperman, 289 Conn. 383, 395, 957 A.2d 836 (2008); Labbe v. Carusone, 115 Conn. App. 832, 836, 974 A.2d 738 (2009); and did not mislead the jury. At the conclusion of the charge, counsel for Ibar requested that the court recharge the jury that the heightened standard of proof is more than the preponderance of the evidence standard. The court properly declined to recharge the jury, noting that it had charged the jury in accordance with Ibar’s request to charge. See Kosko v. Kohler, 176 Conn. 383, 388-89, 407 A.2d 1009 (1978) (plaintiff could not complain about alleged instructional error when charge as given was essentially as plaintiff requested). Ibar’s claim, therefore, must fail.

II

Ibar next claims that he was prejudiced when the court informed the jury, prior to charging the jury, that it had directed a verdict for Stratek in the breach of contract case. We are not persuaded.

The following additional facts are necessary for the resolution of this claim. Prior to charging the jury in this matter, the court directed a verdict for Stratek in the breach of contract action. Since the cases were tried together, the court informed the jury as follows: “After the plaintiff rested in the Ibar versus Stratek case, I granted the Motion for Directed Verdict for the defendant. So, that case no longer requires your resolution, because I’ve previously [ordered] that judgment be entered for the defendant. Additionally, you are only to consider the evidence in the Stratek versus Ibar case and not the evidence in the Ibar versus Stratek case in deciding on your verdict.” Ibar contends that the court should have simply informed the jury that it need not decide the breach of contract case, not that it had ruled in favor of Stratek in that case.

We initially note that upon completion of the charge, the court, outside the presence of the jury, inquired whether counsel had any objections to the charge. Counsel for Ibar did not object to the court’s comment about the directed verdict in the breach of contract case. We also note that although the court did inform the jury regarding the outcome of the breach of contract case, it further instructed the jury not to assume from anything it had said or done that it favored one side or the other. The court instructed the jury that it was the sole judge of the facts, and further, that it was to decide the issues based only on the evidence before it. “ [ W]hen a jury has received an instruction, it is presumed to have followed such instruction unless the contrary appears.” (Internal quotation marks omitted.) Duncan v. Mill Management Co. of Greenwich, Inc., 308 Conn. 1, 22, 60 A.3d 222 (2013). We, therefore, cannot conclude that Ibar was prejudiced when the court informed the jury that it had directed a verdict for Stratek in the companion case.

The judgment is affirmed.

       We note that the briefs on appeal are signed by Jean-Pierre Ibar and Christine Ibar, both of whom are self-represented parties. Only Jean-Pierre Ibar, however, signed the appeal form. To the extent that Jean-Pierre Ibar intended to appeal on behalf of Christine Ibar, we note that “[t]he authorization to appear pro se is limited to representing one’s own cause, and does not permit individuals to appear pro se in a representative capacity.” Expressway Associates II v. Friendly Ice Cream Corp. of Connecticut, 34 Conn. App. 543, 546, 642 A.2d 62, cert. denied, 230 Conn. 915, 645 A.2d 1018 (1994). Because there is no issue that relates soley to Christine Ibar, however, we conclude that we may properly review the issues presented in this appeal.

       As part of his claim of instructional error, Ibar questions the order in which the interrogatories were submitted to jury. Counsel for Ibar did not raise this objection during the charging conference or following the jury charge. We, therefore, decline to review this claim. See West Haven Sound Development Corp. v. West Haven, 207 Conn. 308, 316-17, 541 A.2d 858 (1998).
      Ibar also contends that because the jury deliberated for almost two days, the jurors were divided on the issue of fraud. In this regard, we note that “[t]he length of time that a jury deliberates has no bearing on nor does it directly correlate to the strength or correctness of its conclusions or the validity of its verdict.” (Internal quotation marks omitted.) Baldwin v. Jablecki, 52 Conn. App. 379, 384, 726 A.2d 1164 (1999).

       The court charged in relevant part as follows: “[D]o not assume from anything that I may have said or done during the trial that I favor one side or the other in this case because I do not. My goal has simply been to assure that both sides receive a fair trial. You are, as I told you when we began, the sole judges of the facts. If the lawyers said something in their closing arguments which differs from your collective recollection of the facts, disregard it. You and you alone decide what the facts are, what facts were proven. It is your duty to find the facts based only on the evidence you have heard, and you are to consider the testimony you have heard and the exhibits that have been submitted and draw your own conclusions as to what the ultimate facts are. The parties in this case are entitled to have a calm, careful, conscientious appraisal of the issues by you, the fact finders.”


text:
    MICHAEL SPYKE v. COMMISSIONER OF CORRECTION
    (AC 34634)
    DiPentima, C. X, and Alvord and Harper, Js.

      Argued May 28
    officially released September 3, 2013

      Laljeebhai R. Patel, assigned counsel, for the appellant (petitioner).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, was Jo Anne Sulik, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Michael Spyke, appeals following the denial of his petition for certification to appeal from the judgment dismissing his petition for a writ of habeas corpus, after the court granted the motion for summary judgment of the respondent, the Commissioner of Correction. On appeal, the petitioner claims that the habeas court (1) abused its discretion by denying the petition for certification to appeal, and (2) erred in granting the respondent’s motion for summary judgment. We disagree and dismiss the appeal.

The following facts and procedural history are relevant to this appeal and were set forth in this court’s 2002 decision on the petitioner’s direct appeal, State v. Spyke, 68 Conn. App. 97, 792 A.2d 93, cert. denied, 261 Conn. 909, 804 A.2d 214 (2002). The petitioner was arrested in April, 1998, and charged with murder in violation of General Statutes § 53a-54a, conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a, possession of a weapon in a motor vehicle in violation of General Statutes § 29-38, and commission of a class A, B, or C felony with a firearm in violation of General Statutes § 53-202k. Id., 99. The petitioner was tried before a jury in December, 1999, and the jury found him guilty of all charges except conspiracy to commit murder. Id., 100. The jury was deadlocked on the conspiracy charge, and a mistrial was declared as to that charge. Id.

On direct appeal, the petitioner claimed that the trial court improperly (1) denied his motion to suppress, (2) failed to disclose relevant information for cross-examination, (3) barred cross-examination regarding prior misconduct by the arresting officer, (4) coerced the jury to reach a verdict on the accessory to murder charge through its “Chip Smith” charge, and (5) failed to give an instruction that the jury could consider the circumstances under which the petitioner’s statement was taken. He also claimed that the state’s attorney committed prosecutorial misconduct in her closing argument. Id., 98-99. This court affirmed the trial court’s judgment of conviction in January, 2002. Id., 118.

In January, 2008, the petitioner filed an amended petition for habeas corpus. In his amended petition, the petitioner argued that the trial court improperly read the entire statutory definition of intent from General Statutes § 53a-3 to the jury and that appellate counsel failed to raise the issue on direct appeal. Later in the same month, the respondent filed a motion for summary judgment, arguing that the petitioner’s claims in the amended petition were meritless as a matter of law and that the petitioner could not, therefore, establish that his appellate counsel’s performance was deficient in failing to raise the claim on direct appeal. The habeas court, Schuman, J., granted the motion in February, 2008. On the same day, the court rendered a judgment of dismissal following the granting of the respondent’s motion for summary judgment. Afterward, the petitioner filed a petition for certification to appeal. The habeas court denied the petition in March, 2008.

In March, 2012, the petitioner and the respondent jointly filed a motion for stipulated judgment, requesting that the habeas court render judgment restoring the petitioner’s right to file an appeal from the denial of his petition. The habeas court granted the motion. This appeal followed.

“Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. Abuse of discretion is the proper standard because that is the standard to which we have held other litigants whose rights to appeal the legislature has conditioned upon the obtaining of the trial court’s permission. ... If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.” (Citations omitted.) Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). “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. ... If this burden is not satisfied, then the claim that the judgment of the habeas court should be reversed does not qualify for consideration by this court.” (Citations omitted; internal quotation marks omitted.) Logan v. Commissioner of Correction, 125 Conn. App. 744, 751, 9 A.3d 776 (2010), cert. denied, 300 Conn. 918, 14 A.3d 333 (2011).

In its motion for summary judgment, the respondent argued that the petitioner could not demonstrate that his appellate counsel provided ineffective assistance by failing to raise the claim that it was improper for the trial judge to read the entire statutory definition of intent from § 53a-3 because the claim was meritless as a matter of law. The habeas court granted the motion for summary judgment “on the merits and in absence of a timely objection.” Thus, our analysis focuses on whether the habeas court abused its discretion in determining that the petitioner’s claim of ineffective assistance lacked merit.

“[T]he proper standard for attorney performance is that of reasonably effective assistance.” Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland .... Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed ... by the [s]ixth [ajmendment. ... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. . . . The claim will succeed only if both prongs are satisfied.” (Citations omitted; internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712-13, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 555 U.S. 975, 1295 S. Ct. 481, 172 L. Ed. 2d 336 (2008).

The petitioner claims that appellate counsel should have raised the issue of error in the trial court’s instructions regarding intent. “[T]he failure to pursue unmeri-torious claims cannot be considered conduct falling below the level of reasonably competent representation.” Sekou v. Warden, 216 Conn. 678, 690, 583 A.2d 1277 (1990). “When reviewing the challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper.” (Internal quotation marks omitted.) State v. DeJesus, 260 Conn. 466, 473, 797 A.2d 1101 (2002).

The petitioner argues that the “overall tenor of the trial court’s charge” on intent was “in generic terms, improper and confusing [to] the jury.” The section of the court’s instructions to which the petitioner objects is as follows: “I’ve also added in as a part of the general instructions on intent that a person acts intentionally with respect to a result or to conduct when his conscious objective is to cause such result or to engage in such conduct. But I hasten to add that you cannot find— in other words, to fund murder that the defendant engaged in conduct which resulted in death, in order to find murder, you have to find amongst the other elements that there was an intent to cause death that has to have been the intent going in.” We agree with the respondent that the description of intent as when the “conscious objective is to cause such result or to engage in such conduct” applied to both the accessory to murder and weapons charges against the defendant. The state presented evidence that the petitioner and two others shot the victim, and it was the state’s burden to prove not only the specific intent to murder but also the general intent to engage in the conduct leading to the murder, namely, the firing of the weapon. Thus, it would have been inappropriate for the court not to instruct the jury on general intent as well as specific intent.

Because we conclude that the trial court did not err in instructing the jury on intent as it did, we determine further that appellate counsel’s decision not to raise the issue of instructional error on direct appeal did not rise to level of ineffective assistance of counsel. See Sekou v. Warden, supra, 216 Conn. 690. The petitioner’s claim is therefore without merit, and the habeas court did not abuse its discretion in denying the petition for certification to appeal on such grounds.

The appeal is dismissed.

       In tight of our disposition of the first claim we do not address the second.

       General Statutes § 53a-3 provides in relevant part: “Except where different meanings are expressly specified, the following terms have the following meanings when used in this title . . .
      “(11) A person acts ‘intentionally’ with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such results or to engage in such conduct. . . .”

       The trial court supplemented its original instructions following a jury note requesting to see the judge’s instructions in writing during deliberations.

       In its original instructions to the jury, the trial court stated in relevant part: “[T]o prove murder, the state must prove, as I’ve indicated, beyond a reasonable doubt that an individual in causing the death of the victim did so with the specific intent to cause death.”


text:
    BROOKLYN MACELLAIO v. NEWINGTON POLICE DEPARTMENT ET AL.
    (AC 35159)
    DiPentima, C. J., and Beach and Alvord, Js.

      Argued May 15
    officially released September 3, 2013

      Brooklyn Macellaio, self-represented, the appellant (plaintiff).

      Kateryna Lagun, with whom, on the brief, was James N. Tallberg, for the appellees (named defendant et al.).
   Opinion

PER CURIAM.

The plaintiff, Brooklyn Macellaio, appeals from the summary judgment rendered by the trial court in favor of the defendants, the Newington Police Department and Officers Arkandiusz Petlik and Jeanine Allin, on the ground that the plaintiffs claims were barred by the applicable statutes of limitations. We affirm the judgment of the trial court.

On December 9, 2011, the plaintiff filed his original two count complaint against the defendants alleging false arrest and negligence. Specifically, the plaintiff alleged that the defendants arrested the plaintiff twice, once on May 2, 2008, and again on May 29, 2008, for the same charges arising out of the same incident on May 2, 2008. The plaintiff alleged that he satisfied the $75,000 bond set for his May 2, 2008 arrest on May 27, 2008, but was arrested by the defendants on May 29, 2008, after appearing in court for the same charges arising out of the May 2, 2008 incident, and then had to satisfy an additional $75,000 bond. The plaintiff alleged various injuries and sought monetary damages.

The court granted the defendants’ motion to strike the plaintiffs complaint on February 16, 2012, and the plaintiff filed an amended complaint on March 8, 2012. On July 23,2012, the plaintiff filed a motion for summary judgment. The defendants filed a cross motion for summary judgment on August 24, 2012, on the ground that, inter alia, the plaintiffs claims were barred by the applicable statutes of limitations, General Statutes §§ 52-577 and 52-584. On October 3, 2012, the court granted the defendants’ motion for summary judgment having “found that no genuine issue of material fact exists regarding the fact that [the] plaintiffs claims are barred by the applicable statutes of limitations.” The plaintiff filed a motion for reconsideration regarding the granting of the defendants’ motion for summary judgment, which was denied by the court on October 22, 2012. This appeal followed.

The plaintiff raises two claims on appeal, namely, that the court erred (1) in granting the defendants’ motion for summary judgment because the running of the statutes of limitations was tolled under (a) the fraudulent concealment doctrine or (b) the continuing course of conduct doctrine, and (2) in denying the plaintiffs motion for articulation of the court’s denial of the plaintiffs motion for reconsideration. We disagree and find the tolling doctrines inapplicable and the denial for the motion for articulation improper for our review.

I

We begin by setting forth our standard of review of the court’s granting of the motion for summary judgment. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . Our review of the trial court’s decision to grant the defendant’s motion for summary judgment is plenary.” (Internal quotation marks omitted.) Sherman v. Ronco, 294 Conn. 548, 553-54, 985 A.2d 1042 (2010).

As a preliminary matter, we address the defendants’ argument that the plaintiff waived his right to invoke the doctrine of fraudulent concealment and the doctrine of a continuing course of conduct to toll the statutes of limitations on both of his claims because the plaintiff failed to comply with Practice Book § 10-57. Practice Book § 10-57 provides in relevant part that a “[m]atter in avoidance of affirmative allegations in an answer or counterclaim shall be specially pleaded in the reply.”

The continuing course of conduct doctrine is a matter that must be pleaded in avoidance pursuant to Practice Book § 10-57; Bellemare v. Wachovia Mortgage Corp., 94 Conn. App. 593, 607 n.7, 894 A.2d 335 (2006), aff'd, 284 Conn. 193, 931 A.2d 916 (2007); as is the doctrine of fraudulent concealment; see Bound Brook Assn. v. Norwalk, 198 Conn. 660, 661, 504 A.2d 1047, cert. denied, 479 U.S. 819, 107 S. Ct. 81, 93 L. Ed. 2d 36 (1986). Practice Book § 10-57 directs that the matters in avoidance of affirmative allegations in the answer must be specifically pleaded in the reply. The plaintiffs reply to the defendants’ special defenses does not squarely comply with this rule of practice.

Contrary to the defendants’ argument, the plaintiff has repeatedly, albeit imperfectly, addressed the tolling of the statutes of limitations. After the defendants filed their answer and special defenses, which contained a special defense that the statutes of limitations had run on both of the plaintiff’s counts, the plaintiff filed a motion for summary judgment, as well as a reply to the defendants’ special defenses. In the plaintiffs motion for summary judgment, filed July 23, 2012, he laid the factual groundwork for an allegation of fraudulent concealment by the defendants, but failed to specifically name either the fraudulent concealment or continuing course of conduct doctrines for tolling the statutes of limitations. In his reply to the defendants’ special defenses, filed August 1, 2012, the plaintiff objected to the statutes of limitations special defense on the ground that he was entitled to have the statutes tolled. While the plaintiff provided factual allegations and exhibits in support of this assertion, he again failed to specifically name the tolling doctrines he was attempting to invoke. In the plaintiffs reply to the defendants’ motion for summary judgment, filed September 4, 2012, however, the plaintiff specifically stated that the statutes of limitations should be tolled based on the fraudulent concealment and continuing course of conduct doctrines.

Our Supreme Court, however, has “previously . . . afforded trial courts discretion to overlook violations of the rules of practice and to review claims brought in violation of those rules as long as the opposing party has not raised a timely objection to the procedural deficiency.” Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273, 819 A.2d 773 (2003). In the present case, the defendants failed to raise a timely objection to this procedural defect. Furthermore, “our construction of a self-represented party’s pleading should not focus on technical defects, but should afford the [appellant] abroad, realistic construction of the pleading under review.” Coleman v. Commissioner of Correction, 137 Conn. App. 51, 55 n.1, 46 A.3d 1050 (2012). The court had these filings before it prior to ruling on the cross motions for summary judgment. Despite the defect, “the plaintiff placed the issue before the court and, in this instance, we believe it is just to reach the claim.” Bellemare v. Wachovia Mortgage Corp., supra, 94 Conn. App. 607.

The plaintiffs original complaint sounded in false arrest and negligence. An action sounding in false arrest must be brought “within three years from the date of the act or omission complained of.” General Statutes § 52-577. An action for negligence must be commenced “within two years from the date when the injury is first sustained or discovered . . . .” General Statutes § 52-584. The plaintiffs original complaint was filed on December 9, 2011. The plaintiff alleged the false arrest to have occurred on May 29, 2008, such that the statute of limitations for this claim would have run three years from that date on May 29, 2011. The plaintiffs negligence claim also stems from the alleged actions on May 29, 2008, such that the statute of limitations for this claim would have run two years from that date on May 29, 2010. The court granted the defendants’ motion for summary judgment on October 3, 2012, having “found that no genuine issue of material fact exists regarding the fact that [the] plaintiffs claims are barred by the applicable statutes of limitations.”

“Summary judgment is appropriate where the action is barred by the statute of limitations.” Sanborn v. Greenwald, 39 Conn. App. 289, 293, 664 A.2d 803, cert. denied, 235 Conn. 925, 666 A.2d 1186 (1995). While this action ordinarily would be barred by the statute of limitations because it was brought more than six: months after the statute of limitations had run for the plaintiffs false arrest claim and more than eighteen months after the statute of limitations had run for the plaintiffs negligence claim, the plaintiff asserts that the trial court improperly granted the defendants’ motion for summary judgment because both statutes of limitations were tolled by the fraudulent concealment doctrine and the continuing course of conduct doctrines. We will address the claimed application of each tolling doctrine separately.

A

General Statutes § 52-595 provides: “If any person, hable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence.” Under our case law, to prove fraudulent concealment, the plaintiff is required to show: (1) the defendants’ actual awareness, rather than imputed knowledge, of the facts necessary to establish the plaintiffs cause of action; (2) the defendants’ intentional concealment of these facts from the plaintiff; and (3) the defendants’ concealment of these facts was for the purpose of obtaining delay on the plaintiffs part in filing a complaint on his cause of action. See Bartone v. Robert L. Day Co., 232 Conn. 527, 533, 656 A.2d 221 (1995). Fraudulent concealment must be proved by the more exacting standard of clear, precise, and unequivocal evidence. Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 105, 912 A.2d 1019 (2007). The issue, however, is not whether the plaintiff established fraudulent concealment but, rather, whether there was probable cause to believe that the test might be satisfied. Id.

The plaintiffs claim of fraudulent concealment is predicated on the allegation that “the State of Connecticut and the [defendant Newington Police Department . . . destroyed all records of the illegal May 29, 2008 arrest. . . . [T]he [defendants Arkadiusz Petlik, Jeanine Allin, and the Newington Police Department [swore] to this [c]ourt that NO copies of any and all office records regarding the May 29, 2008 illegal arrest exists in the Newington Police Department.” (Citations omitted.) The plaintiffs reply to the defendants’ memorandum of law in opposition to the plaintiffs motion for summary judgment and in support of the defendants’ cross motion for summary judgment contains the bare allegation that “[t]he statute of limitation period is tolled and does not bar a claim since the [p]laintiff proved that for all or part of the period the [d]efendant(s) fraudulently concealed the cause of action from the [р]laintiff.”

In order to toll the statutes of limitations on the basis of fraudulent concealment, the plaintiff would first have to show the defendants’ actual awareness, not imputed knowledge, of the facts necessary to establish the plaintiffs cause of action. The plaintiff submitted a copy of the defendants’ responses to the plaintiffs production requests in which the defendants were asked to produce “[cjopies of any and all office records regarding the [с]omplaint,” to which the defendants replied “none.” The defendants’ responses to the plaintiffs request for admissions denied arresting the plaintiff on May 29, 2008, and denied having a record of the alleged May 29, 2008 arrest. The plaintiff also included a letter from the police department, dated July 16, 2012, stating that it had investigated the plaintiffs complaint against it and found the plaintiffs arrest to be proper. With these submissions, the plaintiff does not meet his burden to produce evidence that the defendants arrested him on May 29, 2008, knew of such an arrest, or knew of the plaintiffs double bond issue.

Except for the plaintiffs allegations, there is no evidence in the record that the defendants were actually aware of the facts necessary to establish the plaintiffs cause of action. “[I]t remains, nevertheless, incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists.” Connell v. Colwell, 214 Conn. 242, 251, 571 A.2d 116 (1990). The plaintiffs bare assertions fail to establish such a factual predicate as to the first factor for fraudulent concealment. As such, the plaintiff does not raise a genuine issue of material fact required for tolling the statute of limitations under the fraudulent concealment doctrine.

B

Our Supreme Court has “recognized . . . that the statute of limitations and period of repose contained in [General Statutes] § 52-584 may be tolled, in the proper circumstances, under . . . the continu[ing] course of conduct doctrine . . . thereby allowing a plaintiff to bring an action more than three years after the commission of the negligent act .... [T]he continuing course of conduct doctrine reflects the policy that, during an ongoing relationship, lawsuits are premature because specific tortious acts or omissions may be difficult to identify and may yet be remedied.” (Internal quotation marks omitted.) Watts v. Chittenden, 301 Conn. 575, 583-84, 22 A.3d 1214 (2011). “For example, the doctrine is generally applicable under circumstances where [i]t may be impossible to pinpoint the exact date of a particular negligent act or omission that caused injury or where the negligence consists of a series of acts or omissions and it is appropriate to allow the course of [action] to terminate before allowing the repose section of the statute of limitations to run . . . .” (Emphasis omitted; internal quotation marks omitted.) Rosato v. Mascardo, 82 Conn. App. 396, 402-403, 844 A.2d 893 (2004).

“It is axiomatic that [w]hen the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed. . . . [I]n order [t]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after the commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong. . . . Where [our Supreme Court has] upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act. . . . Furthermore, [t]he doctrine of continuing course of conduct as used to toll a statute of limitations is better suited to claims where the situation keeps evolving after the act complained of is complete . . . .” (Citations omitted; internal quotation marks omitted.) Bellemare v. Wachovia Mortgage Corp., supra, 94 Conn. App. 608.

In deciding whether the trial court properly granted the defendants’ motion for summary judgment, we must determine if there is a genuine issue of material fact with respect to whether the defendant: (1) committed an initial wrong upon the plaintiff, and (2) whether a duty continued to exist after the cessation of the act or omission relied upon by (a) evidence of a special relationship between the parties giving rise to such a continuing duty or (b) some later wrongful conduct of the defendants related to the prior act. See id.

Although the plaintiffs complaint alleged that the initial wrong of false and negligent arrest occurred on May 29, 2008, the plaintiff failed to satisfy the second prong. The plaintiff failed to submit any evidence that the defendants’ duty to the plaintiff continued to exist after the initial wrong by virtue of later wrongful conduct of the defendants related to the prior act. With respect to the alternate grounds for existence of a duty, the plaintiff has neither pleaded nor produced any evidence of a special relationship between himself and the defendants.

The plaintiff also has failed to raise a genuine issue of material fact that the alleged violation continued to evolve after the act complained of was complete, i.e., that there was some later wrongful conduct of the defendants related to the prior act. The plaintiff alleged that “the illegal arrest, destruction of documents, and negligence was not an isolated transaction but was part of a continuing course of conduct in which the [defendants engaged over a period of time from May 29, 2008 until present day August 26, 2012.” The plaintiff produced no evidence to support that bare assertion.

“[B]are assertions by the nonmovant are not enough to withstand summary judgment.” Zeller v. Consolini, 59 Conn. App. 545, 564, 758 A.2d 376 (2000). “Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court . . . .” (Internal quotation marks omitted.) Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995).

In the present case, the plaintiff failed to substantiate his adverse claim. Although the plaintiff contends that there is a genuine issue of material fact with regard to some later wrongful conduct of the defendants related to the prior act, he does not provide evidence disclosing the existence of such an issue. The plaintiff, therefore, cannot toll the statutes of limitations applicable to his claims on the basis of the continuing course of conduct doctrine.

II

The plaintiffs second issue on appeal is whether the court erred in denying his motion for articulation of the court’s denial of the plaintiffs motion for reconsideration. We conclude that the plaintiffs claim is not a proper subject for review on appeal.

Following the court’s denial of the plaintiffs motion for reconsideration on October 22, 2012, the plaintiff filed a motion for articulation on October 31, 2012. The corut denied the plaintiffs motion on November 19, 2012.

Practice Book § 66-5 provides in relevant part that “[t]he sole remedy of any party desiring the court having appellate jurisdiction to review the trial court’s decision on the motion [for articulation] filed pursuant to this section . . . shall be by motion for review under Section 66-7. ...” The plaintiffs pursuit of review and remedy through appeal is, therefore, inappropriate. See Rivnak v. Rivnak, 99 Conn. App. 326, 334—35, 913 A.2d 1096 (2007). We decline to review this claim farther.

The judgment is affirmed.

       The complaint also named Ralph Dagostine as a defendant, but he is not a party to this appeal. We previously affirmed the judgment of dismissal rendered by the trial court in favor of Dagostine on the ground of sovereign immunity. See Macellaio v. Newington Police Dept., 142 Conn. App. 177, 64 A.3d 348 (2013). For convenience, we therefore refer in this opinion to the Newington Police Department, Petlik and Allinas as the defendants.

       In the plaintiffs statement of issues, he sets forth three issues in total, designating the two tolling arguments as separate issues. We have reframed these issues so that they better represent the plaintiffs claims on appeal.