author: SPEAR, J.

text:
    STATE OF CONNECTICUT v. HENRY AUSTIN
    (AC 18906)
    Foti, Spear and Zarella, Js.
    Argued April 27
    officially released August 8, 2000

      James O. Ruane, special public defender, for the appellant (defendant).

      Eileen McCarthy Geel, assistant state’s attorney, with whom were John A. Connelly, state’s attorney, and Catherine Brannelly Austin, assistant state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant, Henry Austin, appeals from the judgment of conviction, rendered after a jury trial, of unlawful restraint in the first degree in violation of General Statutes § 53a-95, burglary in the second degree in violation of General Statutes § 53a-102 (a), criminal trespass in the first degree in violation of General Statutes § 53a-107 and assault in the third degree in violation of General Statutes § 53a-61. The defendant claims that the trial court deprived him of a fair trial by failing to instruct the jury on an essential element of burglary in the second degree and improperly instructing the jury on the presumption of innocence. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At about 1:40 a.m. on April 19,1997, the defendant, who was somewhat intoxicated at the time, went to the victim’s home in Waterbury. When the victim opened the door slightly, she recognized the defendant as a man whom she knew only as “Hank” whom she had met at a friend’s home a month before. After the victim rejected the defendant’s request to enter her apartment, the defendant forced his way into the apartment. Once inside, the defendant forcefully put both of his hands on the victim’s neck and berated her for “pushing a retarded boy down,” and told her that he would “kick her ass.”

A struggle ensued in which the victim tried to push the defendant out of her apartment. She failed to do so and retreated to the kitchen, where the back door was located. She told the defendant to leave, but he refused. The defendant had cut one of his fingers on the victim’s earring when he grabbed her by the neck and was veiy upset about that. To calm him, the victim offered to bandage the cut. They went into the bathroom for that purpose, but once they were inside the bathroom the defendant shut the door and again began choking the victim. The defendant pushed the victim against the bathroom window with such force that the window broke and the victim sustained a serious cut. After more struggling with the defendant, the victim managed to escape through the bathroom window. She then ran to a neighbor’s home where she called 911.

The defendant was subsequently arrested and convicted of burglary in the second degree, unlawful restraint in the first degree, criminal trespass in the first degree and assault in the third degree. On appeal he claims that the court improperly failed to instruct the jury, sua sponte, that to convict him of burglary in the second degree it had to find unanimously that he either unlawfully entered the victim’s apartment or unlawfully remained therein. Additionally, he asserts that the court improperly instructed the jury that the law was made to protect the innocent and not the guilty, thereby eroding the presumption of innocence. He claims that the failure of the court to give the specific unanimity instruction, combined with the improper instruction on the presumption of innocence, deprived him of a fair trial. We conclude that the defendant was not deprived of a fair trial.

I

The defendant asserts that in instructing the jury on the elements of burglary in the second degree, the court should have expressly told the jury that it had to be unanimous in finding the defendant guilty of unlawfully entering or unlawfully remaining in the victim’s apartment. Otherwise, he claims, the jury was free to convict him without unanimously agreeing on an essential element of the crime charged. The defendant neither objected to the charge as given nor submitted a request to charge on this issue. Although the defendant’s unpreserved claim is reviewable under the first two prongs of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), we conclude that there was no constitutional violation that clearly deprived the defendant of fair trial, and, therefore, his claim fails under the third prong of Golding.

As to the charge of burglary in the second degree, the substitute information alleged that the defendant committed the crime either by unlawfully entering the victim’s apartment or unlawfully remaining on the premises. As the state correctly points out, the resolution of this issue is controlled by our Supreme Court’s decision in State v. Famiglietti, 219 Conn. 605, 595 A.2d 306 (1991). In addressing whether a defendant’s right to a unanimous verdict is violated when a court fails to give a specific unanimity charge in a case in which criminal liability may be based on the violation of one or several alternative subsections of a criminal statute, our Supreme Court stated: “We first review the instruction that was given to determine whether the trial court has sanctioned a nonunanimous verdict. If such an instruction has not been given, that ends the matter.” Id., 619. Here, the court did not give an instruction that sanctioned a nonunanimous verdict because the court made it clear that the jury had to find each element of burglary in the second degree proven beyond a reasonable doubt to convict the defendant. We therefore conclude that the defendant’s right to a unanimous verdict was not violated.

In State v. Berger, 249 Conn. 218, 238, 733 A.2d 156 (1999), our Supreme Court further held: “Where a criminal statute may be violated under alternate theories of liability ... a jury’s verdict must be affirmed if there is sufficient evidence to support a finding of guilty on at least one theory of liability. State v. Dyson, 238 Conn. 784, 795, 680 A.2d 1306 (1996); see State v. Chapman, 229 Conn. 529, 539-44, 643 A.2d 1213 (1994). Consequently, in such circumstances, it is not reversible error for the trial court [to charge] the jury on a factually unsupported basis of criminal liability provided that, in addition to that instruction, the trial court instructs the jury on a factually supported basis. State v. Dyson, supra, 795.” (Internal quotation marks omitted.)

Here there was ample evidence for the jury to have concluded that the defendant, by the use of force, unlawfully entered the victim’s apartment. Alternatively, there was ample evidence to show that the defendant refused to leave and unlawfully remained in the apartment. The defendant’s first claim must therefore fail.

II

The defendant also claims that the court improperly instructed the jury as to the law concerning the presumption of innocence. Specifically, the court instructed the jury: “It is the sworn duty of the courts and jurors to safeguard the rights of persons charged with crime by respecting the presumption of innocence, which the law gives every person so charged. But the law is made to protect society and innocent persons, and not to protect guilty ones.” The defendant claims that the court’s failure to give a specific unanimity charge, coupled with its misstatement of the law as to the presumption of innocence, deprived him of a fair trial.

This claim was not presented to the court, undoubtedly because the challenged language was taken verbatim from the defendant’s request to charge. He does not assert that the claim is constitutional and reviewable pursuant to Golding, even though he induced the alleged error of which he now complains. We, therefore, decline to review this claim. See State v. Scognamiglio, 202 Conn. 18, 25, 519 A.2d 607 (1987); State v. Hinckley, 198 Conn. 77, 81 n.2, 502 A.2d 388 (1985).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-102 (a) provides: “A person is guilty of burglary-in the second degree when he enters or remains unlawfully in a dwelling at night with intent to commit a crime therein.”

       The record is adequate for review, and “[a] claim bearing on the defendant’s right to a unanimous verdict implicates a fundamental constitutional right to a fair trial and is thus reviewable despite the defendant’s failure to request a specific unanimity charge or to take proper exceptions.” State v. Famiglietti, 219 Conn. 605, 619, 595 A.2d 306 (1991).

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

       After reading to the jury the statutory definition of burglary in the second degree, the court instructed the jury in relevant part: “For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt: First, that the defendant knowingly and unlawfully entered or remained in the premises ....
      * ❖
      “If you determine that the premises are a building, as that term has been defined, you must next decide whether the defendant unlawfully entered or remained in such building. In other words, the state must prove, beyond a reasonable doubt, that the defendant entered unlawfully ... or regardless of how the defendant entered he remained there unlawfully.
      “If you find that the state has proven, beyond a reasonable doubt, each of the elements of the crime of burglary in the second degree, then you shall find the defendant guilty of this charge. On the other hand, if you find that the state has failed to prove, beyond a reasonable doubt, any one of the elements, you shall then find the defendant not guilty of this charge.”

       The defendant also claims that reversal of the judgment is required under State v. Schiappa, 248 Conn. 132, 728 A.2d 466 (en banc), cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999). In Schiappa, our Supreme Court, in the exercise of its supervisory authority over the administration of justice, ordered our trial courts to refrain from using the instruction that the law is made to protect the innocent and not the guilty. Id., 175. Schiappa is of no avail to the defendant because it was decided more than a year after his trial and the order was prospective.


source: Caselaw Access Project

author: LAVERY, J.

license: Public Domain

text:
    MOUNTAINDALE CONDOMINIUM ASSOCIATION, INC. v. JOSEPH ZAPPONE ET AL.
    (AC 18538)
    Lavery, Landau and Dupont, Js.

    Argued December 10, 1999
    officially released August 15, 2000

      James W. Oliver, with whom, on the brief, was Dur-win P. Jones, for the appellant (plaintiff).

      Michael C. Deakin, for the appellees (defendants Robert Norton et al.).

      William C. Berry, for the appellee (defendant town of Thomaston).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

LAVERY, J.

The plaintiff, Mountaindale Condominium Association, Inc., appeals from the judgment of the trial court rendered after the granting in part of the defendants’ motions for summary judgment. On appeal, the plaintiff claims that the court improperly (1) applied the statute of limitations, General Statutes § 52-584, where the defendants failed to allege the statute as a special defense, (2) applied the doctrine of constructive notice where fraudulent concealment was pleaded, (3) engaged in fact-finding where it found that the plaintiff had constructive notice of building code violations and failed to make reasonable inquiry, (4) ignored factual predicates that, as a matter of law, give rise to genuine issues of material fact concerning the fraudulent concealment by the defendants and (5) concluded that the continuing course of conduct doctrine did not toll the statute of limitations. We affirm the judgment of the trial court.

On January 13,1995, according to the deputy sheriffs return of service, the plaintiff instituted causes of action against multiple defendants, alleging, in a thirty-five count complaint, violations of various building and fire codes with respect to the construction of Mountaindale Condominiums (Mountaindale) in Thomaston. The defendant Carmella Lecko’s decedent, Robert Lecko, who died in May, 1992, was the building inspector who had issued the building permits and certificates of occupancy for the condominium units. The defendant town of Thomaston (town) employed Lecko as its building inspector and the defendant Robert Norton as its fire marshal.

On April 2, 1997, the plaintiff filed a fifth revised complaint. Counts twenty-two and twenty-three were against Lecko and Norton, and counts twenty-four and twenty-five were against the town. The plaintiff alleged that the named defendant, Joseph Zappone, who constructed Mountaindale, created the plaintiff by declaration, with subsequent amendments, pursuant to the laws of the state of Connecticut on or about November 13,1986. The named defendant controlled Mountaindale until April, 1988, when the plaintiff assumed control. The plaintiff further alleged that the named defendant failed to build the condominium units in accordance with local and state building codes. According to the allegations of the complaint, Lecko was reckless in issuing certificates of occupancy for the condominium units, and his recklessness created a nuisance. Furthermore, the plaintiff alleged that Lecko and Norton fraudulently concealed the construction defects. The plaintiff claims that the town, pursuant to General Statutes § 52-557n (b) (7), acted in reckless disregard of the health and safety of the plaintiffs unit owners and their families, was reckless in its employment and supervision of Lecko and Norton, and created a nuisance by recklessly permitting the certificates of occupancy to be issued.

The defendants filed motions for summary judgment on January 15,1998, claiming that the plaintiffs causes of action were time barred and that the plaintiff had failed to state a cause of action in nuisance. The plaintiff objected to each motion. All parties submitted affidavits and evidence in support of their various positions. The court granted in part the defendants’ motions for summary judgment because the plaintiffs causes of action were barred by § 52-584 or General Statutes § 52-577. The plaintiff appealed. Additional facts will be discussed as needed.

Our review of the court’s granting of motions for summary judgment involves questions of law and is de novo. See Serrano v. Burns, 248 Conn. 419, 425, 727 A.2d 1276 (1999). Practice Book § 17-49, formerly § 384, “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. See Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990). The facts at issue are those alleged in the pleadings. See Plouffe v.New York, N.H. & H.R. Co., 160 Conn. 482, 489, 280 A.2d 359 (1971). The party seeking 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 a judgment as a matter of law.’ . . . D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). The party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. See Practice Book §§ [17-45 and 17-46]. ‘In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts.’ . . . Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990). A motion for summary judgment ‘is properly granted if it raises at least one legally sufficient defense that would bar the plaintiffs claim and involves no triable issue of fact.’ Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 543, 494 A.2d 555 (1985).” Beebe v. East Haddam, 48 Conn. App. 60, 64, 708 A.2d 231 (1998).

“While the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986), a party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment. Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986), cert. denied, 480 U.S. 932, 107 S. Ct. 1570, 94 L. Ed. 2d 762 (1987). Gallien v. Connecticut General Life Ins. Co., 49 F.3d 878, 882 (2d Cir. 1995). On appeal, however, the burden is on the opposing party to demonstrate that the trial court’s decision to grant the movant’s summary judgment motion was clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 222, 435 A.2d 24 (1980). 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn. App. 563, 567, 636 A.2d 1377 (1994).” (Internal quotation marks omitted.) Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn. App. 582, 591, 715 A.2d 807 (1998).

I

The plaintiff first claims that the court improperly considered § 52-584 as a bar to its claims because the defendants did not allege that particular statute of limitation as a special defense. We disagree.

Our rules of practice clearly state that “[n]o facts may be proved under either a general or special denial except such as show that the plaintiffs statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged. Thus . . . the statute of limitations . . . must be specially pleaded . . . .” Practice Book § 10-50, formerly § 164. “Where several matters of defense are pleaded, each must refer to the cause of action which it is intended to answer, and be separately stated and designated as a separate defense, as, First Defense, Second Defense, etc. Where the complaint or counterclaim is for more than one cause of action, set forth in several counts, each separate matter of defense should be preceded by a designation of the cause of action which it is designed to meet, in this manner: First Defense to First Count, Second Defense to First Count, First Defense to Second Count, and so on. . . .” (Emphasis in original.) Practice Book § 10-51, formerly § 165. “When any claim made in a complaint, cross complaint, special defense, or other pleading is grounded on a statute, the statute shall be specifically identified by its number.” Practice Book § 10-3 (a), formerly § 109A (a).

Here, Lecko and Norton pleaded § 52-577 as a bar to the plaintiffs causes of action against them, but without referencing the count or counts to which it applied, as required by Practice Book § 10-51, formerly § 165. The plaintiff, however, did not file a request to revise, asking Lecko and Norton to allege their special defenses in accordance with our rules of practice. The plaintiff merely filed a general denial of the special defenses. As to the town, it also did not plead its special defenses in explicit compliance with our rules of practice, but its special defenses were pleaded separately as to both counts against it. The town alleged § 52-577 as a special defense to both counts. The plaintiff denied the special defense.

In its motion for summary judgment, the town asserted both §§ 52-577 and 52-584 as precluding the plaintiffs causes of action, arguing that count twenty-four was barred by § 52-584 and § 52-577 barred count twenty-five. Lecko and Norton claimed that count twenty-two was barred by § 52-584 and that count twenty-three was barred by the applicable statute of hmitation without specifically designating the applicable statute. The plaintiff did not object to the statutory basis of the motions for summary judgment or bring to the court’s attention the fact that the defendants had not alleged § 52-584 as a special defense. The plaintiff, therefore, waived any objection to the defendants’ failure to plead § 52-584 as a special defense. See Thompson & Peck, Inc. v. Harbor Marine Contracting Corp., 203 Conn. 123, 132, 523 A.2d 1266 (1987); Carnese v. Middleton, 27 Conn. App. 530, 537, 608 A.2d 700 (1992).

Our Supreme Court has “repeatedly held that ‘[t]he failure to file a special defense may be treated as waived when it appears that no objection was raised to the offer of evidence on the issue at the trial.’ Frager v. Pennsylvania General Ins. Co., 161 Conn. 472, 479, 289 A.2d 896 (1971); see Alderman v. Hanover Ins. Group, 155 Conn. 585, 590, 236 A.2d 462 (1967); Royal Homes, Inc. v. Dalene Hardwood Flooring Co., 151 Conn. 463, 466, 199 A.2d 698 (1964); see also Mainolfi v. Brazee, 135 Conn. 435, 437, 65 A.2d 261 (1949); O’Donnell v. Groton, 108 Conn. 622, 625, 144 A. 468 (1929).” Damora v. Christ-Janer, 184 Conn. 109, 112, 441 A.2d 61 (1981). Although the cited cases apply the doctrine of waiver when no objection is made to the introduction of evidence during trial, we conclude that the doctrine is equally applicable when no objection is made to the statutory basis of a motion for summary judgment. The court, therefore, properly considered § 52-584 as a defense to counts twenty-two and twenty-four of the plaintiffs complaint.

II

The plaintiffs second claim is that the court improperly applied the doctrine of constructive notice where fraudulent concealment was pleaded. Because we conclude that the court properly determined that there was no genuine issue of material fact that the plaintiff knew of actionable harm in 1989 and that its cause of action was time barred, we need not reach the issues of constructive notice and fraudulent concealment.

The following facts are relevant to the trial court’s conclusion that the plaintiff knew of actionable harm in 1989. The complaint alleged that between November, 1986, and November, 1987, Lecko issued certificates of occupancy for each unit that was sold, certifying that each unit substantially conformed to the relevant building code and regulations. The complaint also alleged that condominiums such as Mountaindale were required to be built with fire separation walls with a fire resistant rating of not less than one hour, adequate venting and shingles that are installed with under-layment and are hand sealed. Mountaindale, it was alleged, was constructed in violation of the building code and the fire code because none of the units have mandatoiy, continuous fire separation walls between them, exhaust fans for second floor bathrooms are vented into the attic rather than outside, bricks were placed on roofing shingles causing them to buckle and fall, and shingles were laid without underfelt. The plaintiff alleged that it did not know that the construction of the condominium units violated the building code or fire code until September, 1993, at the earliest. The plaintiff also alleged that some of the building and fire code violations were not known until October, 1994.

Further, the plaintiff alleged that the violations of the building code were latent and could not be discovered with reasonable diligence. According to the plaintiff, the defendants intentionally and fraudulently concealed the defective construction by issuing certificates of occupancy, warranting that the condominium units were in substantial compliance with the building and fire codes. Furthermore, according to the plaintiff, the purpose of the fraudulent concealment was to delay the plaintiffs discovering that it had a cause of action.

Through discovery, the parties obtained documents and testamentary evidence, some of which they submitted in support of or objection to the summary judgment motions. The defendants submitted, among other things, a memorandum dated August 2,1989, from Daniel Portanova, the president of the plaintiffs board of directors, to Andrew Gionta, one of the owners of the Mountaindale property management company (property manager). The memorandum instructed the property manager, “Call lawyer, we want a written legal opinion of noncompliance of builder’s work with building codes. Can we force the builder to remedy the situation? Examples are no fire walls in attics and improper fire walls between units. Also, could the town condemn units if we notify the building inspector of the problems.” (Emphasis added.)

In its motion for summary judgment, the town took the position that both §§ 52-577 and 52-584 provide that no cause of action may be brought but within the time specified “from the action or omission complained of.” It argued that the date of the act or omission complained of was the time the conduct occurred, not the date the plaintiff first sustained damages. The act or omission of which the plaintiff complained was the improper construction of the units in violation of building and fire codes. The town took the position that the plaintiff had knowledge of the building code violations and actionable harm no later than August, 1989, and that therefore the action that was commenced more than five years later was untimely.

The plaintiff objected to the motions for summary judgment, and presented affidavits and deposition testimony in support of its position that the defendants had engaged in fraudulent concealment, thus tolling the statute of limitations. The plaintiff claimed that Lecko knew of the violations of the building code because he had inspected the plumbing and electrical installations at Mountaindale, which occurred after the framing was completed but before the dry wall had been hung. The plaintiff also claimed that Lecko could see that there was no framing in the attic for fire separation walls. The plaintiff argued that Lecko concealed the building code defects, in part, by failing to complete that portion of the certificates of occupancy calling for identification of the use group pertaining to Mountaindale, i.e., R-2 or R-3. As to Norton, the plaintiff claimed that because Norton was employed by a unit owner to install a staircase in an attic in 1991, Norton should have known of the absence of fire separation walls.

The court determined that there was no genuine issue of material fact that the plaintiff, through its president, Portanova, knew there were problems with the construction of fire walls in the attics in 1989, although he did not know of the specific violation of the building code until years later. The court concluded that “in 1989, the means of knowledge existed and the circumstances were such as to put a plaintiff of ordinary prudence on inquiry. There was knowledge of what could have been readily ascertained by such inquiry, and the plaintiff learned of information that would lead to the discovery of a cause of action through due diligence. Accordingly, under such circumstances, the plaintiff cannot successfully establish fraudulent concealment of a cause of action.” With respect to the allegation that the defendants engaged in a continuing course of conduct to conceal the plaintiffs cause of action, the court, citing Beckenstein v. Potter & Carrier, Inc., 191 Conn. 150, 162, 464 A.2d 18 (1982), determined that it did not have to reach that issue because the plaintiff through Porta-nova, the president of the plaintiffs board of directors, knew of a problem with the construction of Mountain-dale in 1989, and the continuing course of conduct doctrine does not apply at any time after the plaintiff discovers the harm.

“In the context of applying § 52-584 to decide whether a particular action was commenced in a timely fashion, we have stated that ‘an injury occurs when a party suffers some form of actionable harm.’ Burns v. Hartford Hospital, 192 Conn. 451, 460, 472 A.2d 1257 (1984); see Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 521, 562 A.2d 1100 (1989); Lambert v. Stovell, 205 Conn. 1, 6, 529 A.2d 710 (1987); Catz v. Rubenstein, 201 Conn. 39, 43, 513 A.2d 98 (1986); see Durrett v. Leading Edge Products, Inc., 965 F. Sup. 280, 284-85 (D. Conn. 1997) . . . .” Rivera, v. Double A Transportation, Inc., 248 Conn. 21, 26, 727 A.2d 204 (1999). “Actionable harm occurs when the plaintiff discovers or should discover, through the exercise of reasonable care, that he or she has been injured and that the defendant’s conduct caused such injury.” (Internal quotation marks omitted.) Nash v. Yap, 247 Conn. 638, 646 n.12, 726 A.2d 92 (1999). “The statute begins to run when the plaintiff discovers some form of actionable harm, not the fullest manifestation thereof.” Merly v. State, 211 Conn. 199, 206, 558 A.2d 977 (1989). “The focus is on the plaintiffs knowledge of facts, rather than on discovery of applicable legal theories.” (Internal quotation marks omitted.) Catz v. Rubenstein, supra, 47. “Although an expert opinion may lead to discovery of an ‘actionable harm’; Burns v. Hartford Hospital, [supra, 460]; it does not follow that a plaintiff cannot reasonably discover an injury absent verification by a qualified expert.” Barnes v. Schlein, 192 Conn. 732, 737-38 n.7, 473 A.2d 1221 (1984). With respect to the language of § 52-584, our Supreme Court has stated, “To hold that a claimant has an option to present his claim within one year from the actual discovery of actionable harm rather than from the time when such harm ‘in the exercise of reasonable care should have been discovered’ would render the latter phrase superfluous and wholly ineffective in requiring reasonable diligence on the part of claimants.” Merly v. State, supra, 207, citing § 52-584.

In its brief and at oral argument before this court, the plaintiff claimed that it did not know until November, 1993, whether Mountaindale fell within the R-2 or R-3 use group of the building code and, therefore, whether the condominium was required to be built with fire walls or fire separation walls in the attics of each unit. The question we must determine is whether there is any genuine issue of material fact that Portanova knew of construction defects sufficient to put him on notice in August, 1989, that it was likely there were building and fire code violations involved in the construction of the units.

In August, 1989, Portanova wrote to the property manager, asking him to get a legal opinion concerning fire walls, fire walls in the attic and the building code. The plaintiff does not dispute this fact, but claims that when Portanova wrote the memorandum, he was concerned about noise and was acting on misinformation he had received from business acquaintances who told him the walls separating the units were required to be concrete. This position overlooks the unequivocal nature of Portanova’s deposition testimony concerning fire walls in the attic. Portanova had lived in his unit for approximately two years, had gone into his attic and had seen that only his unit had a fire wail. As a result of his own observations and concerns, he questioned the construction of fire walls in the attic. The plaintiff presented no evidence to contradict when Por-tanova became aware of these facts, which occurred prior to August, 1989.

Section 52-584 provides in relevant part, “No action to recover damages for injury to . . . real or personal property, caused by . . . reckless or wanton misconduct . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . . Section 52-577 provides that “[n]o action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.” The allegation of wrongdoing against these defendants is the reckless issuance of certificates of occupancy warranting that the Mountaindale units were in substantial compliance with the relevant building codes, and that the construction of the units was in violation of the building and fire codes. The last certificates of occupancy were issued at the end of 1987. Portanova discovered the missing fire walls in the attic in the summer of 1989. As a matter of law, as we explain more fully in part III of this opinion, Portanova’s concern was sufficient to require Mountain-dale to make reasonable efforts to discover whether there were building code violations and bring an action within the time frames of the statutes of limitations. See Catz v. Rubenstein, supra, 201 Conn. 39; Burns v. Hartford Hospital, supra, 192 Conn. 460. The plaintiff should have brought an action when it knew of any building code violations affecting the roof or the fire walls. It knew of the lire code violations in 1989 and could have moved to amend a timely complaint when any building code violations involving the roof were discovered. This later, additional violation, known at least on January 20, 1992, flows from the same nucleus of facts known to the plaintiff in 1989. The plaintiff was aware of actionable harm in 1989 for the purposes of the statute of limitation. See Merly v. State, supra, 211 Conn. 206.

The plaintiff did not commence its action until January, 1995, which is beyond the time permitted by either §§ 52-577 or 52-584. The court, therefore, properly determined that fraudulent concealment and a continuing course of conduct did not toll the statute of limitation.

Ill

The plaintiffs third claim is that the court improperly engaged in fact-finding when it found that the plaintiff was on constructive notice of building code violations and failed to make reasonable inquiry. We are not persuaded.

A

The first subissue is whether the court improperly engaged in fact-finding in rendering summary judgment. The substance of the plaintiffs claims is that the court confused the distinction between fire walls, which are constructed of concrete, and fire separation walls, and that the court did not place Portanova’s August 2, 1989 memorandum in its proper context, specifically with regard to the advice given to Portanova concerning noise. The plaintiff also claims that the court overlooked the allegations of the complaint. On the basis of our review of the complaint and Portanova’s deposition testimony cited in footnote 14, we conclude that this is not the case.

The plaintiffs fifth revised complaint alleges in relevant part as follows: “If41. Article 9 of the Building Code states that: ‘multiple, single-family dwellings . . . attached by a common wall, said wall shall be a fire separation wall, having a minimum one (1) horn resistance rating. Said wall shall extend from the foundation to the underside of the roof sheathing, and to the inside of the exterior wall sheathing. . . . 1(48. [The named defendant] constructed the Mountaindale buildings ... in violation of the Building Code, Fire Code . . . in one or more of the following ways ... b. in that these separation walls stop at the bottom of the second floor ceiling in violation of the requirement that there be a continuous fire separation wall; c. in that none of the units have the mandatory continuous fire separation walls between the units from the foundation to the roof as required to provide the required fire resistance of at least one (1) hour between adjacent condominium units . . . e. in that all of the units have either conduits, pipes or electrical wires which are not properly sealed and thus improperly and impermissibly penetrate the existing walls between the individual units allowing the spread of fire and smoke, thereby also violating the requirement that there be a continuous unbroken fire separation wall ... f51. These violations were unknown to any of the unit owners or to the Association because a reasonably diligent inspection of the units by the Plaintiff (which has no expertise in Building or in Fire Codes) could not and did not reveal these defects nor were said defects and deficiencies . . . readily recognizable by the unit owners who lacked special knowledge or training.”

The plaintiff presented no evidence to contradict Por-tanova’s testimony that sometime prior to August, 1989, he was in the attic of his unit and saw cable wires on the floor that went through the wall. He looked through the holes in the wall and observed that only his unit had walls in the attic. Through the holes, he could see the end of his building. Portanova testified that he knew of the absence of fire walls in the attic during the summer of 1989. According to the allegations of the plaintiffs complaint, one of the construction defects concerned the presence of fire walls in the attics. There is no genuine issue of material fact that Portanova knew almost six years prior to the commencement of the plaintiffs cause of action that there were no fire walls in the attics of all the units. The court in granting summaiy judgment, therefore, did not improperly engage in fact-finding.

B

The second subissue is the plaintiffs claim that the court improperly ignored facts concerning whether the plaintiff made reasonable inquiry. To raise this issue is to accuse the court of failing to find facts, which a court may not do when considering a motion for summary judgment. In effect, the plaintiff claims that the court improperly failed to determine whether the plaintiff made reasonable inquiry when Portanova told the property manager to get an opinion from a lawyer and in regard to the circumstances that ensued. The court was required to do no more than determine whether there was a genuine issue of material fact that the plaintiff knew that it had been injured more than two or three years from the time the action was commenced. To determine whether the plaintiffs efforts to discover its injury were reasonable would have been a factual inquiry. The court, therefore, properly did not consider the question, in addition to the fact that that issue is not relevant to when the plaintiff discovered actionable harm.

IV

The plaintiffs fourth claim is that the court improperly (1) ignored factual predicates that, as a matter of law, give rise to genuine issues of material fact concerning the fraudulent concealment by the defendants and (2) barred the plaintiff from conducting discovery as to Lecko. We do not agree.

A

The plaintiff claims that the court ignored factual predicates that, as a matter of law, raise genuine issues of material fact concerning Lecko’s and Norton’s fraudulent concealment of the plaintiffs cause of action. This question is not relevant to the issue of when the plaintiff discovered actionable harm. As we concluded in part II of this opinion, the court properly determined that Portanova discovered the absence of fire walls in the attics of his building no later than August, 1989. Portano-va’s discovery of actionable harm within the parameters of §§ 52-577 and 52-584 will not extend the time to commence a cause of action.

The fact of the matter is that the court determined that the plaintiff had not commenced an action within either two or three years from the date Portanova discovered that only his unit had fire walls in the attic of his building. The plaintiff, on appeal, asks this court to take a next step and determine whether the defendants’ actions prevented the plaintiff from exercising reasonable care to discover the cause of the harm or a theory of recovery. There is absolutely no question that according to his deposition testimony, Portanova knew there were no fire walls in the attics and that he considered that to be a problem. He instructed the property manager to talk to a lawyer about the problem and to get a legal opinion. For whatever reason, Portanova and the property manager did not do that and now seek to lay responsibility for their decision at the feet of the defendants. This our law does not permit. As set forth in part II of this opinion, the statute of limitations is not tolled when the plaintiff discovers some form of actionable harm; see Burns v. Hartford Hospital, supra, 192 Conn. 460; we must look to the plaintiff’s knowledge of facts rather than to its discoveiy of a legal theory. See Catz v. Rubenstein, supra, 201 Conn. 47.

B

The plaintiffs second subissue is that the court improperly prohibited it from conducting discovery as to Lecko. The plaintiff has not provided us with the interrogatories and requests for production at issue, a transcript of the argument before the court or an articulation of the court’s ruling. “It is the appellant’s burden to provide an adequate record for review. Practice Book § [60-5] .... It is, therefore, the responsibility of the appellant to move for an articulation or rectification of the record where the trial court has failed to state the basis of a decision ... to clarify the legal basis of a ruling . . . or to ask the trial judge to rule on an overlooked matter.” (Citations omitted; internal quotation marks omitted.) Krondes v. Norwalk Savings Society, 53 Conn. App. 102, 116, 728 A.2d 1103 (1999). Here, the plaintiff did not move for an articulation of the court’s ruling regarding the subject discovery. We therefore decline to review this claim.

V

The plaintiff’s final claim is that the court improperly concluded that the continuing course of conduct doctrine did not toll the statute of limitations. We do not agree.

The plaintiff argued that the building code required Lecko and Norton to tell it that Mountaindale was not constructed in compliance with the building code. In granting the defendants’ motions for summary judgment, the court, citing Beckenstein v. Potter & Carrier, Inc., supra, 191 Conn. 162, concluded that there was no factual dispute that Portanova discovered the absence of fire walls in the attics in or before August, 1989, and that the continuing course of conduct doctrine does not apply after the plaintiff discovers the harm.

In Beckenstein, the plaintiffs contracted for the construction of a building. Shortly after it was constructed, the roof began to leak, a fact of which the plaintiffs were aware. Id., 154. A number of attempts were made to repair the roof, and an action was not commenced until the statute of limitations had expired. Id., 160. The general superintendent of the project “also testified that when he went up on the roof in the winter of early 1969, he observed blisters, cracks and canting of the roof. There was not a failure to warn the plaintiffs because they admit that they were already aware of the problem. In their brief, the plaintiffs argue that they were not told the ‘main problem’ of the roofs failure until 1974. . . . The problem with this argument is that the statute refers to the ‘date when the injury was first sustained,’ not the date when the cause of the injury was first determined.” (Citation omitted.) Id., 162.

In this case, Portanova discovered the absence of fire walls in the attic in 1989, which constitutes actionable harm. The fact that the plaintiff did not discover other related harms, such as defective roofs or the cause of the injury until some years later, namely the precise violations of the fire and building codes, is not sufficient to toll the statute of limitations. The court properly applied the law.

The judgment is affirmed.

In this opinion the other judges concurred.

       This appeal involves only the defendants Robert Norton; Carmella Leclco, executrix of the estate of Robert Lecko; and the town of Thomaston. They are referred to collectively as the defendants. The named defendant, Joseph Zappone, and other defendants are not parties to this appeal.

       General Statutes § 52-584 provides in relevant part: “No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . . .”

       Subsequent reference to Lecko is to the defendant Carmella Lecko’s decedent.

       Count 1 wen1 y-1.wo sounds in recklessness, and count twenty-three sounds in nuisance.

       Count twenty-four sounds in recklessness, and count twenty-five sounds in nuisance.

       Although it did not allege it, the plaintiff claims Norton should have been aware of the absence of fire walls in the attics in 1991 when he was employed by a unit owner to install a pull down stairway in the attic of the unit.

       In view of our conclusion that the plaintiff’s causes of action are time barred, we do not reach the issue of whether the plaintiff failed to allege a cause of action sounding in nuisance.

       In its memorandum of law in support, of it s motion for summary judgment, the town asserted that General Statutes § 52-584 bars count twenty-four of the complaint because it alleges reckless and wanton disregard, but did not consider whether the damages the plaintiff alleged are consistent with the statute. Section 52-584 provides in relevant part, “No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct . . . .” (Emphasis added.) In affirming the judgment, we do not, reach the question of whether the plaintiffs complaint properly alleged a claim for injury to real or personal property and, thus, whether § 52-584 or General Statutes § 52-577 was the statute of limitation that would bar a cause of action such as the one alleged by the plaintiff in count twenty-four.

       The court assumed that Lecko and Norton intended General Statutes § 52-577 to apply to count twenty-three because that count sounds in nuisance. Lecko and Norton alleged § 52-577 in their special defenses.

       On the basis of our review of the pleadings, we note that the plaintiff did not affirmatively plead General Statutes § 52-595 in response to the defendants’ special defenses, which alleged that the plaintiffs claims were barred by the applicable statutes of limitation. “In order to raise a claim of fraudulent concealment, the party challenging a statute of limitations defense must affirmatively plead it. . . . In the present case, the reply filed by the plaintiffs contained a general denial of the defense. This was insufficient.” (Citations omitted.) Beckenstein v. Potter & Carrier, Inc., 191 Conn. 150, 163, 464 A.2d 18 (1982) (claim not properly before court). One of the defendants raised this issue at oral argument before the trial court, but on appeal the defendants did no1 raise the issue as an alternate ground on which the judgment should be affirmed. We therefore derm the argument abandoned.

       The defendants also submitted a copy of the minutes of the January 20, 1992 meeting of the plaintiffs board of directors. The minutes demonstrate that the directors, in 1992, knew unequivocally of building code violations at Mountaindale and, at that time, discussed bringing an action against the town’s building inspector.

        The minutes of the plaintiffs board of directors of January 20,1992, state in relevant part: "Dan Leveillee brought up the problems we are having with various buildings. He also pointed out that what appears on the blueprints included in the Resale package is not what was built, i.e. 15 lb. felt paper on the roof, brick fronts, shutters, etc. The question was asked of Walt whether or not he thought it was feasible to go after the Building Inspector of Thomaston for these code violations. Walt told the Board that he felt it would not be worth the hassle or legal fees to fight Joe Zappone and/or the Town of Thomaston. Walt says that generally a judge will rule that condo owners pay X number of dollars for their units, and they are generally not top of the line, so this is the owner’s problem.
      “Brian Malarkey told Walt that the problem is not with the workmanship, it is with the obvious code violations allowed by the building inspector. Dick Newell accused G & W of proteo! ing Joe Zappone, to which Walt had no real comment. Dick brought up the fact that Frank Rosa of unit 6A had complained frequently to G & W about 1he problems with his unit, yet the board was never told of the severity of the problem. Dan Leveillee told Walt that the Board was told by Andy that the problem was ‘just a water problem.’ Walt did not know the specifics of the case, therefore, he had no comment.
      “Dan Leveillee then asked Walt for his opinion, and Walt suggested getting a list of code violations together. Walt will get the names of several engineers. Jim Michaud will get a copy of the codes violated and will have them for the engineer, so he will have the specs. Jim will also get bids from area contractors on repairing the damage to unit 6A. (Dick Newell and Jim will go with contractors to inspect the damaged areas.)”

       This claim that the plaintiff did not know the required fire rating until November, 1993, is irrelevant. The August 2, 1989 memorandum of the president of the plaintiffs board of directors clearly indicates that he was aware of the noncompliance of the builder with both the building and fire codes. In support of its motion for summary judgment, the town submitted a copy of a letter to the property manager from counsel representing a party in a dispute over common charges and defects in unit 6A to which the minutes make reference. Also in support of its motion, the town submitted a copy of the field correction notice and letter concerning unit 6A that was issued by a town building official on February 15, 1991.
      The letter from counsel that is dated January 13, 1992, states in part: “Attached . . . [is] a copy of ... a letter from the Building Official of the Town of Thomaston, dated February 15,1991 re Unit-6A and a Field Correction Notice, dated February 15, 1991 re problems at Mr. Rosa’s unit.”
      The February 15, 1991 letter from the building official to Rosa states in part: “Another violation I encountered was that openings were left in the garage ceiling and party wall where plumbing and electrical penetrated the wall and ceiling. Basement garages must be smoke tight and fire-rated for one hour. This is a life threatening situation and must be corrected immediately.
      “Please refer to the BOCA Code book, Section 1207.0, 1207.1 and 1207.3 for violations.”
      The field correction notice dated February 15, 1991, states in part: “Upon inspection, violations of the BOCA Code book Sec. 1207.0-1207.1-1207.3 were in evidence. The following orders are hereby issued for their correction: fire rating in garage no good. . . . Please call for inspection when corrections have been completed. Acceptance and approval by an inspector of this department is required. All corrections must be made on or before 3-19-91.”

       The following sections of Portanova’s deposition testimony are relevant. Defense counsel conducted the inquixy.
      “Q: So, you first became aware of the alleged lack of fire walls back in 1989, correct?
      “A: In '89 I had a belief from—I was in the tracking and warehousing business and I can hear my neighbors through my walls, and I requested or asked one of my contractors that was a customer of mine why I can hear my neighbors through my walls, and he told me that there should be a contiguous concrete wall from the—between every two units, which is what prompted that letter.
      “Q: But getting back to the—we’ll come back to the fire separation walls question. Getting back to the fire walls in the attic, when did you first become aware that there might not be proper fire walls in the attic at Mountaindale?
      “A: I would say that 1989 was my first—was when I questioned whether there were fire walls in the attics or proper fire walls.
      “Q: And with regard to the fire separation walls between the units, was it also in 1989 that you first became aware that there might not be proper fire separation walls between the units at Mountaindale?
      “A: I didn’t know about the fire separation walls. My concern in ’89 was a concrete wall that I was told was the code between every two adjoining units, which I knew there wasn’t, and that was where I was going with that letter—is that there should be concrete—in my opinion or in my—what I was told was that there should be concrete between the units.
      “Q: So, back in 1989 you became aware that there might be a problem with the fire walls in the attic?

        * ** *
      “A: Yes, I would say yes, I believe there was -
      “Q: And in 1989, you first became aware that there might be problems with the walls between the units at Mountaindale?
      “A: My concern was in the noise I was getting through the walls. That was my concern with the walls.
      “Q: Your concern [with] the walls between the units was limited to noise?
      “A: That’s what started my inquiry, and a customer told me there was supposed to be a fire wall made of concrete.
      * * *
      “Q: With regard to this memorandum, can you tell me the circumstances that gave rise to you authoring the last paragraph of that memorandum?
      * * -Is
      “A: Okay, yes, I had—while I was living in my unit, the bedrooms on those units are directly in line side by side so the B unit and the D unit bedrooms, master bedrooms, were directly against mine and I could hear conversations, I can hear intimacies in the bedroom at night, and if I can hear them of course they can hear me and that was my concern—is that if I can hear them barely talking, that they could hear me and I mentioned that to some of my customers who would know more than I do about the building of those units, and they said that oh, well, you shouldn’t be able to hear through there, there should be a concrete wall between yours because my belief was . . . Of course, at this point I had been in the attic probably almost two years and there was a Sheetrock wall, as I said, in my attic, but the cable wires run across the floor of my attic and run through holes in the Sheetrock walls, and by looking through those holes, I could see the other end of the building so my unit in my building was the only unit that had walls in the attic,

      “Q: When did you determine that your building was the only building that had walls in the attic?
      “A: I mean my unit, not my building. Exactly when I don’t—somewhere when I was up in the attic. I inspected my roof, and when I realized I had all that nice space up there that was unused, I opened up that doorway and started packing excess belongings up in the attic.
      “Q: Would that have been before you drafted that memorandum?
      “A: Yes. That would have been in that same time period. That’s what

        caused me to ask about the attic ‘walls because I was the only one that I noticed that had them,.” (Emphasis added.)


author: PELLEGRINO, J.

text:
    LUIS M. HENRIQUES v. WALTER J. MAGNAVICE ET AL.
    (AC 19822)
    Lavery, C. J., and Spear and Pellegrino, Js.

      Submitted on briefs March 22
    officially released August 15, 2000

      Paul T. Nowosadko and Lorinda S. Coon filed a brief for the appellant (defendant state of Connecticut).

      Carlos M. Santos filed a brief for the appellee (plaintiff).
   Opinion

PELLEGRINO, J.

The defendant state of Connecticut (state) appeals from the judgment rendered in favor of the plaintiff in a claim for personal injury arising from a motor vehicle collision. The state claims that the trial court improperly refused to submit its apportionment complaint to the jury. We agree with the state and reverse the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. In September, 1996, the plaintiff suffered personal injuries in an automobile accident caused when a motor vehicle owned by the state and driven by Walter J. Magnavice made an abrupt lane change, causing the plaintiff to lose control of his vehicle and to strike a concrete barrier.

The state offered evidence that the abrupt lane change was necessitated by the actions of the plaintiffs fiancee, Anabela T. Reis, who was driving a third vehicle, a Volkswagen, in close proximity to the plaintiffs and the state’s vehicles. Just prior to the accident, Mag-navice noticed Reis’ vehicle behind him, closing in at a high rate of speed. To avoid what he perceived to be a potential collision with Reis’ vehicle, Magnavice moved his vehicle into the adjacent lane. The state claims that that maneuver caused the plaintiff to lose control of his vehicle and to strike the concrete barrier.

The state filed an apportionment complaint against Reis pursuant to General Statutes § 52-102b (a), claiming that any damages suffered by the plaintiff were caused, in whole or in part, by Reis’ negligence in failing to keep her vehicle under control and in traveling too fast. After the conclusion of the evidence, the trial court refused to submit the apportionment complaint to the jury, concluding that there was insufficient evidence that it was Reis’ vehicle that was following the state’s vehicle at a high rate of speed.

The sole claim on appeal is that the trial court improperly failed to submit the state’s apportionment claim to the jury. We agree with the state.

It is well established that “[a] request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given.” (Internal quotation marks omitted.) State v. Lepri, 56 Conn. App. 403, 412, 743 A.2d 626, cert. denied, 253 Conn. 902, 753 A.2d 938 (2000). “[A] trial court should instruct a jury on [every] issue for which there is any foundation in the evidence, even if weak or incredible.” (Internal quotation marks omitted.) Eisenbach v. Downey, 45 Conn. App. 165, 182, 694 A.2d 1376, cert. denied, 241 Conn. 926, 696 A.2d 1264 (1997). “The trial court has a duty not to submit any issue to the jury upon which the evidence would not support a finding.” (Internal quotation marks omitted.) Seymour v. Carcia, 24 Conn. App. 446, 454, 589 A.2d 7 (1991), aff'd, 221 Conn. 473, 604 A.2d 1304 (1992). Accordingly, the right to a jury instruction is limited to those theories for which there is any foundation in the evidence. State v. Adams, 225 Conn. 270, 283, 623 A.2d 42 (1993). In determining whether any such foundation exists, “[w]e must consider the evidence presented at trial in the light most favorable to supporting the [party’s] request to charge.” Id. Additionally, “[w]hen . . . 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.) Powers v. Olson, 252 Conn. 98, 105, 742 A.2d 799 (2000).

Prior to the Connecticut tort reform acts of 1986 and 1987, codified at General Statutes § 52-572h, Connecticut adhered to the common-law rule of joint and several liability. “[U]nder the common-law rule of joint and several liability, a defendant who was only slightly at fault could be held responsible for the entire amount of damages, as long as his negligence was a proximate cause of the plaintiffs injuries.” (Internal quotation marks omitted.) Babes v. Bennett, 247 Conn. 256, 269, 721 A.2d 511 (1998). By enacting § 52-572h, “[t]he legislature sought to remedy the growing concerns regarding the cost and availability of liability insurance by abrogating the doctrine of joint and several liability for negligent tortfeasors and thus imposing limitations on a negligent defendant’s obligation to pay damages.” Bhinder v. Sun Co., 246 Conn. 223, 232, 717 A.2d 202 (1998). Section 52-572h (c)° provides in relevant part that “if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for his proportionate share of the . . . damages . . . .” General Statutes § 52-102b (a) is the procedural vehicle by which a defendant in a negligence action may bring in a party for apportionment of liability purposes.

“Apportionment does not affect the determination of whether the defendant is hable under a theory of negligence but, rather, affects the determination of his degree of fault once a trier of fact has determined that his breach of a reasonable standard of care was a substantial factor in causing the plaintiffs injuries.” Bhinder v. Sun Co., supra, 246 Conn. 239. “Once it is determined that the defendant’s conduct has been a cause of some damage suffered by the plaintiff, a further question may arise as to the portion of the total damages which may properly be assigned to the defendant, as distinguished from other causes.” (Internal quotation marks omitted.) Id., 239-40.

The state filed an appropriate apportionment complaint against Reis in this case, claiming that she should share in any liability to the extent that her negligence proximately caused the plaintiffs injuries. After the presentation of the evidence, the trial court concluded that there was insufficient evidence that Reis had been involved in the accident and therefore refused to submit the state’s apportionment claim to the jury. Accordingly, the issue before this court is whether, in viewing the evidence most favorable to the state’s theory, there existed any foundation in the evidence to support the claim for apportionment. After a careful review of the record and briefs, we conclude that there was sufficient evidence to support an instruction on apportionment.

Magnavice testified that he was forced to make the abrupt lane change to get out of the way of a Volkswagen that was approaching him from behind at a high rate of speed, and that after he made the lane change, the next time he saw that vehicle was when it was parked behind his, after he pulled over to the shoulder of the roadway. He testified further that Reis was the driver of that vehicle.

Despite this testimony, the trial court concluded that “[t]here is no proof at all that Miss Reis was the [driver of the] car at issue.” (Emphasis added.) This determination was based, at least partially, on the fact that Mag-navice described Reis’ Volkswagen as being white in color, whereas Reis testified that her vehicle was maroon. It was up to the jury, however, as fact finder, to determine whether to believe Magnavice’s testimony or Reis’ testimony as to the color of her vehicle.

The trial court’s conclusion, therefore, that there was insufficient evidence to submit the defendant’s apportionment claim to the jury is contrary to the evidence and based, in part, on credibility determinations that are properly left to the jury. Because we conclude that there was sufficient evidence presented at trial to support the requested jury instruction, the trial court improperly failed to give the apportionment instruction to the jury.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       Magnavice was named as a defendant in the original complaint, but the plaintiffs claims against him were subsequently withdrawn.

       The state claims also that the trial court, by disposing of the apportionment claim in this manner, effectively issued a directed verdict in favor of the plaintiff. In light of our holding, we need not address whether a trial court’s failure to submit an apportionment claim to a jury, under circumstances similar to those here, amounts to a directed verdict. We do want to point out, however, that “a directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed”; United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 380, 260 A.2d 596 (1969); and that “[ijssues of negligence are ordinarily not susceptible of summary abdication but should be resolved by trial in the ordinary manner.” (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). Furthermore, “[cjonclusions of proximate cause are to be drawn by the jury and not by the court.” (Internal quotation marks omitted.) Doe v. Manheimer, 212 Conn. 748, 757, 563 A.2d 699 (1989), overruled in part on other grounds, Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 608, 662 A.2d 753 (1995).

       In this case, the state requested jury instructions on the apportionment complaint, which the trial court refused.

       General Statutes § 52-102b provides in relevant part: “(a) A defendant in any civil action to which section 52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiffs damages in which case the demand for relief shall seek an apportionment of liability. . . . The person upon whom the apportionment complaint is served, hereinafter called the apportionment defendant, shall be a party for all purposes, including all purposes under section 52-572h.
      “(b) The apportionment complaint, shall be equivalent in all respects to an original writ, summons and complaint .... The apportionment defendant shall have available to him all remedies available to an original defendant ....
      “(f) This section shall be the exclusive means by which a defendant may add a person who is or may be liable pursuant to section 52-572h for a proportionate share of the plaintiffs damages as a party to the action. . . .”


author: PER CURIAM.

text:
    MARY CUYLER v. BOARD OF EDUCATION OF THE CITY OF DANBURY
    (AC 19203)
    Spear, Hennessy and Mihalakos, Js.
    Submitted on briefs March 21
    officially released August 15, 2000

      A. Scott Falls filed a brief for the appellants (plaintiffs).

      Mark J. Sommaruga filed a brief for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiffs appeal from the summary judgment rendered in favor of the defendant, the board of education of the city of Danbury. The plaintiffs claim that the trial court improperly ruled that they had failed to exhaust their administrative remedies and that their claims were covered under the collective bargaining agreement. The plaintiffs also claim in their brief that the trial court failed to hold an evidentiary hearing before dismissing the action, but we will not review that claim because it was not raised in the trial court.

Our examination of the record and briefs and our consideration of the arguments of the parties persuades us that the judgment of the trial court should be affirmed. The issues presented were resolved properly in the trial court’s thoughtful and comprehensive memorandum of decision. See Cuyler v. Board of Education, 46 Conn. Sup. 486, 757 A.2d 694 (1998). Because that memorandum of decision fully addresses the arguments raised in this appeal, we adopt it as a proper statement of the facts and the applicable law on those issues. It would serve no useful purpose for us to repeat the discussion contained therein. See East v. Labbe, 54 Conn. App. 479, 480, 735 A.2d 370 (1999), aff'd, 252 Conn. 359, 746 A.2d 751 (2000).

The judgment is affirmed.

       Forty-two similarly situated teachers joined the named plaintiff, Mary Cuyler, as party plaintiffs.


author: ZARELLA, J.

text:
    STATE OF CONNECTICUT v. CHARLES SLIMSKEY
    (AC 18727)
    O’Connell, C. X, and Zarella and Dupont, Js

    Argued February 14
    officially released August 15, 2000

      Donald G. Leis, Jr., with whom, on the brief, was Dennis M. McManus, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, was Scott J. Murphy, state’s attorney, for the appellee (state).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

ZARELLA, J.

The defendant, Charles Slimskey, appeals from the judgment of conviction, rendered after a jury trial, of two counts of risk of injury to a child in violation of General Statutes (Rev. to 1993) § 53-21, one count of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), and one count of possession of fireworks in violation of General Statutes § 29-357. On appeal, the defendant claims that the trial court improperly (1) refused to conduct an in camera review of the complaining witness’ school records, including any psychological or psychiatric records that may have been contained within such records, (2) failed to admit into evidence a prior inconsistent statement of the victim’s father and (3) admitted into evidence a certain pornographic videotape. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant and the victim first met in the summer of 1993, when the victim was approximately fourteen years old and the defendant was approximately forty years old. Their relationship initially consisted of the victim’s visiting the defendant at his automobile repair and restoration shop to talk about cars. The victim was interested in cars and enjoyed spending time at the defendant’s shop helping out in various ways.

The relationship progressed, and the defendant invited the victim to his residence in Berlin to show the victim his model cars. While at his house, the defendant showed the victim a sexually explicit videotape entitled, “Dirty Dozen,” and encouraged the victim to masturbate. On several other occasions at the defendant’s residence, the victim and the defendant engaged in mutual masturbation, and the defendant exposed the victim to sexually explicit materials, including videotapes and magazines.

The defendant also had a fetish for cutting and pulling hair. He initially involved the victim by asking to cut and color the victim’s hair. It developed to the point that the defendant agreed in writing with the victim to provide him with a Mustang automobile at cost when he turned sixteen years old in exchange for the victim’s allowing the defendant to have “full control” of his hair.

The sexual activity between the victim and the defendant then progressed to include oral sex. Initially, the victim was not a willing participant. He eventually agreed, however, and the two engaged in oral sex on several occasions.

In the spring of 1995, the victim ran away from home to Delaware, where he was arrested. The victim’s father retrieved him from Delaware and began tape-recording the victim’s telephone conversations, including several between the defendant and the victim. Several of the conversations contained details of the victim’s hairstyle, and the defendant’s plan to cut and lighten the victim’s hair. The victim’s father confronted the victim, who eventually confided in his father the details of his relationship with the defendant. The victim’s father reported these details to the Berlin police department.

In April, 1995, the Berlin police obtained a warrant to search the defendant’s residence. This search yielded most of the state’s physical evidence, including pornographic videotapes and a logbook in which the defendant kept pieces of hair and details of haircuts that he had given.

In March, 1998, prior to the commencement of the trial, the defendant filed a motion seeking disclosure of the victim’s school and psychological records. In that motion, the defendant requested that the court conduct an in camera inspection of the records to determine if they contained any information that might affect the victim’s ability to be truthful. After a hearing on March 10,1998, the court, Scheinblum, J., granted the motion and reviewed the records. The court concluded that the records did not contain any information that might affect the witness’ ability to testify truthfully.

The matter proceeded to trial in June, 1998. On the last day of evidence, the defendant renewed his motion for disclosure of the records and requested that the court, Cutsumpas, J., make an in camera review. The motion was denied. The defendant thereafter was found guilty of two counts of risk of injury to a child and one count of sexual assault in the second degree. The defendant was sentenced to a total effective term of twenty years, execution suspended after ten years, with five years probation.

I

The defendant first claims that the court abused its discretion by refusing to conduct an in camera review of the victim’s school records, including any psychological or psychiatric records that may have been contained within such records, and by denying him access to the records. We are not persuaded.

As previously stated, prior to trial, the defendant filed a motion seeking disclosure of certain of the victim’s school records. In that motion, the defendant sought to have the court conduct an in camera inspection of the records to determine whether anything in them would bear on the credibility of the victim or his ability to testify truthfully.

In March, 1998, the court, Scheinblum, J., granted the pretrial motion and conducted an in camera inspection. The court determined that there was nothing in the records that would bear on the ability of the victim to testify truthfully and, therefore, the defendant was denied access to and use of the records.

The victim testified at trial. At the end of the defendant’s case, defense counsel moved that the court, Out-sumpas, J., conduct an in camera review of the school records to determine if they contained evidence that would bear on the truthfulness of the victim’s testimony. The court denied the motion on the grounds that at an earlier stage in the same proceeding, a review or inspection had been completed by another court, which had denied access to the records, and that there were no new records to review.

“On appeal, this court has the responsibility of conducting its own in camera inspection of the sealed records to determine if the trial court abused its discretion in refusing to release those records to the defendant.” State v. Walsh, 52 Conn. App. 708, 722, 728 A.2d 15, cert. denied, 249 Conn. 911, 733 A.2d 233 (1999).

“The linchpin of the determination of the defendant’s access to the records is whether they sufficiently disclose material especially probative of the ability to comprehend, know and correctly relate the truth ... so as to justify breach of their confidentiality . . . .’’(Citation omitted; internal quotation marks omitted.) State v. Storlazzi, 191 Conn. 453, 459, 464 A.2d 829 (1983). “Whether and to what extent access to the records should be granted to protect the defendant’s right of confrontation must be determined on a case by case basis.” Id. At this stage in the proceedings, when the trial court has reviewed the records in camera, access to the records “must be left to the discretion of the trial court which is better able to assess the probative value of such evidence as it relates to the particular case before it . . . and to weigh that value against the interest in confidentiality of the records.” (Citation omitted; internal quotation marks omitted.) Id. We review the court’s decision under an abuse of discretion standard.

We have carefully examined the challenged records and conclude that the court reasonably could have found that they contained no evidence that was probative of the victim’s ability to be truthful. The court did not abuse its discretion in denying the defendant’s motion for disclosure of the victim’s school and psychiatric records.

II

The defendant next claims that the court abused its discretion in refusing to admit into evidence a prior written statement given to the police by the victim’s father. We decline to address this claim.

As the appellant, the defendant has the burden to provide an adequate record for review. Slate v. Collic, 55 Conn. App. 196, 209, 738 A.2d 1133 (1999). The defendant at trial did not mark the written statement for identification and, therefore, it is not part of the record. “The purpose of marking an exhibit for identification is to preserve it as part of the record and to provide an appellate court with a basis for review.” (Internal quotation marks omitted.) State v. Harrison, 34 Conn. App. 473, 490, 642 A.2d 36, cert. denied, 231 Conn. 907, 648 A.2d 157 (1994). Thus, the written statement is not part of the record before us, and we are unable to review the claim.

Ill

The defendant’s final claim is that the court abused its discretion in admitting into evidence a challenged videotape because there was a gap in the chain of custody of the videotape. Further, the defendant claims that the state failed to lay a foundation that adequately established the unaltered condition of the videotape. We do not agree.

At trial, the state presented the testimony of several police officers regarding the seizure of items from the defendant’s house. Officer Drew Gallupe collected all of the seized items garnered during the search. Subsequently, the evidence was transported to the police station and turned over to the evidence custodian, Detective Raymond Gola, who also had taken part in the search of the defendant’s house. The evidence never left Gallupe’s custody until he delivered it to the police station.

Among the items collected at the defendant’s house were several videotapes. Gallupe testified on cross-examination that he did not individually view, tag and record each of the videotapes. He also acknowledged that the inventory form listed an entry for videotapes as “VHS videocassette” and another was entered as “VHS videotapes.” The inventory list did not number or describe the videotapes.

Gola also testified concerning the videotapes. He was shown three videotapes and stated that “these appear to be the same tapes that were seized by me.” The state represented to the court that the videotapes were secure in the property room at the Berlin police department and then transferred to a sealed box for transportation to the courthouse. The box containing the videotapes was opened in the presence of defense counsel.

At trial, the state offered one of the videotapes entitled, “Dirty Dozen,” as an exhibit. The defendant objected and argued that there was a gap in the chain of custody of the videotape and, therefore, it could not be identified as one of the seized videotapes. Further, the defendant also argued that the gap in the chain of custody made it impossible to ensure that the tape was in the same condition as the one seized at his house.

The court found that there was satisfactory proof of an adequate chain of custody, that there was a reasonable probability that the evidence seized at the defendant’s house was the same as that offered at trial, that the evidence had not been tampered with and that any weakness in the chain of custody went to the weight of the evidence and not its admissibility. The videotape was then admitted as a full exhibit.

“Our standard of review regarding challenges to a trial court’s evidentiary rulings is that these rulings will be overturned on appeal only where there is an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. . . . State v. Cole, 50 Conn. App. 312, 330-31, 718 A.2d 457, cert. granted on other grounds, 247 Conn. 937, 722 A.2d 1217 (1998). It is a well established principle of law that the trial court may exercise its discretion with regard to evidentiary rulings, and the trial court’s rulings will not be disturbed on appellate review absent abuse of that discretion. . . . 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 .... And [it] requires a knowledge and understanding of the material circumstances surrounding the matter .... In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court’s ruling. . . . Wright v. Hutt, 50 Conn. App. 439, 445, 718 A.2d 969, cert. denied, 247 Conn. 939, 723 A.2d 320 (1998).” (Internal quotation marks omitted.) State v. Orhan, 52 Conn. App. 231, 237-38, 726 A.2d 629 (1999).

A

The defendant claims that the court improperly admitted the challenged videotape because there was a gap in the chain of custody of the videotape. We do not agree.

We conclude that the court did not abuse its discretion in admitting the videotape. Each police officer having custody of the admitted evidence testified at trial. This testimony laid a sufficient foundation for the admission of the videotape. The court, therefore, properly admitted the videotape.

B

The defendant farther claims that the state failed to lay a foundation that adequately established the unaltered condition of the videotape. We disagree.

“An object connected with the commission of a crime must be shown to be in substantially the same condition as when the crime was committed before it can be properly admitted into evidence. . . . The court has broad discretion on this evidentiary issue, and its ruling may not be overturned on appellate review except for a clear abuse of discretion. . . . The state’s burden with respect to establishing a chain of custody is met by showing that it is reasonably probable that the substance has not been changed in important respects .... The court must consider the nature of the article, the circumstances surrounding its preservation and custody and the likelihood of intermeddlers tampering with it ... . There is no hard and fast rule that the state must exclude or disprove all possibility that the article has been tampered with.” (Citations omitted; internal quotation marks omitted.) State v. Green, 55 Conn. App. 706, 713, 740 A.2d 450 (1999), cert. denied, 252 Conn. 920, 744 A.2d 438, cert. denied, 529 U.S. 1136, 120 S. Ct. 2019, 146 L. Ed. 2d 966 (2000).

The defendant has not presented any evidence indicating that the videotape was tampered with in any way. The defendant’s assertions to the contrary are merely speculative. See State v. Burns, 23 Conn. App. 602, 615, 583 A.2d 1296 (1990). “The defendant has the obligation of affirmatively showing that the evidence was in some way tampered with, altered, misplaced, mislabeled or otherwise mishandled to establish an abuse of the court’s discretion in admitting the evidence.” State v. Green, supra, 55 Conn. App. 713. The court properly admitted the videotape in this case.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court stated: “Well, counsel, from what I understand from the in-chambers conference and from a review of the court file, the clerk’s file, your motion for an examination of these in camera records was vigorously pursued. I read this morning the twelve page brief, which your office had filed for that purpose. And Judge Scheinblum, from my examination of the file, apparently granted your motion for an in camera review and reviewed those records. And according to the transcript you handed to me, Judge Scheinblum said, and I quote: ‘And I made an in camera inspection, and I find nothing in there that would bear upon the witness’ ability to be truthful. His ability to recant the allegations and, accordingly, it will go no further.’ And so your in camera review was granted, counsel.
      * ** *
      “I am also concerned that the state would be somewhat prejudiced at this stage if I overturned Judge Scheinblum’s order even if I had authority to do so on the bases that they prepared their case without the benefit of these records. . . . I suspect that the slate had the same kind of concerns. So, counsel, I am going to deny your request. If you wish to put the witness on with something new, I would be happy to entertain it. If not, I am denying your request.”

       The defendant additionally claimed that the court, Cutsumpas, J., abused its discretion in failing to review the records in light of the evidence introduced at trial. As noted, we have reviewed the records and determined that the defendant suffered no prejudice resulting from the court’s refusal to review them again.

       The defendant claims that there is a gap in that “the Berlin police never knew from the very outset precisely what they had seized—either in terms of the titles of the videotapes in their individual plastic containers or in terms of the number of videocassettes, which they caused to be seized.”


author: SPALLONE, J.

text:
    CONNECTICUT SAVINGS BANK v. ROBERT S. OBENAUF ET AL.
    (AC 19442)
    Foti, Mihalakos and Spallone, Js.
    Argued May 5
    officially released August 15, 2000

      Richard P. Weinstein, with whom was Nathan A. Schatz, for the appellant (defendant Ardeth H. Obenauf).

      Robert W. Allen, for the appellee (substitute plaintiff).
   Opinion

SPALLONE, J.

The defendant Ardeth H. Obenauf appeals following the trial court’s denial of her motion to open and set aside the money judgment rendered in favor of the substitute plaintiff, Federal Deposit Insurance Corporation, as receiver of the plaintiff Connecticut Savings Bank. On appeal, the defendant claims that the court improperly held her hable on a promissory note to which she was not a party. We reverse the judgment of the trial court and remand the matter with direction to grant the defendant’s motion.

The following facts are relevant to a resolution of this appeal. In September, 1990, Connecticut Savings Bank filed a two count complaint against the defendant and her husband, Ronald S. Obenauf, who is not a party to this appeal. Count one alleged that Ronald S. Obenauf was in default on a promissory note. Count two alleged that Ronald S. Obenauf fraudulently conveyed real property to the defendant. On December 18,1991, after the defendant and Ronald S. Obenauf were defaulted for failure to disclose a defense, the court rendered judgment against them. The judgment entitled the plaintiff to recover from both defendants damages in the amount of the debt, $41,175.75, plus costs taxed in the amount of $629.50.

On December 10, 1998, citing equitable considerations, the defendant filed a motion to open and set aside the December 18, 1991 money judgment against her. The parties also filed a stipulation that (1) at the time the judgment was rendered, no evidence had been presented to the court as to the value of the property conveyed in the alleged fraudulent transfer, (2) at the time the judgment was rendered, no evidence had been presented to the court that the defendant had received any moneys as a result of the allegedly fraudulent conveyance or from any disposal of her interest in the property, and (3) no evidence had been presented to the court that the defendant had received any money as a result of the foreclosure of the property by a judgment of strict foreclosure.

On February 22, 1999, the court denied the defendant’s motion to open and set aside the judgment. The court reasoned that the defendant had not alleged facts tending to show that the judgment was the result of fraud, accident, mistake or clerical error, and that the defendant improperly based her argument on case law developed several years after the date of the judgment.

Thereafter, on March 5, 1999, the defendant filed a motion for reargument, reconsideration or both. On March 8, 1999, the court granted reconsideration for the sole puipose of accepting and reviewing the parties’ stipulation and the defendant’s supporting affidavit. The court denied the defendant’s request for reargument, however, and determined that its prior order denying the motion to open would remain in effect. This appeal followed.

The defendant claims that the court improperly denied her motion to open and set aside the money judgment because she was never alleged to be, nor ever was, a party to the promissory note. She argues that the effect of the judgment was to impose liability against her for a debt that the plaintiff did not claim to be her responsibility. She contends that she merely was the transferee of the allegedly fraudulent conveyance and that count two of the complaint never alleged that she had disposed of the property or otherwise obtained any proceeds from disposal of the property. Citing Crepeau v. Gronager, 41 Conn. App. 302, 313-17, 675 A.2d 1361 (1996), the defendant claims that neither the pleadings, the evidence nor the applicable law supports the judgment against her.

The plaintiff responds that the defendant provides no evidence that the judgment was obtained by fraud, accident, mistake or clerical error. The plaintiff also responds that the defendant merely asserts that the court made a mistake of law. The plaintiff contends that legal error is not a mistake that would permit the opening and setting aside of a judgment, and that the defendant improperly attempts to reargue the merits of the original judgment.

We initially observe that the defendant did not appeal from the original judgment or file her motion to open and to set it aside within the twenty day appeal period. See Practice Book § 63-1 (a). “When a motion to open is filed more than twenty days after the judgment, the appeal from the denial of that motion can test only whether the trial court abused its discretion in failing to open the judgment and not the propriety of the merits of the underlying judgment.

“The decision to grant or deny a motion to open a judgment is within the trial court’s discretion and this decision will not be disturbed on appeal unless it was unreasonable and a clear abuse of discretion.” Altberg v. Paul Kovacs Tire Shop, Inc., 31 Conn. App. 634, 640, 626 A.2d 804 (1993).

In the present case, the defendant’s claim goes to the merits of the judgment, specifically, to the defendant’s liability for damages in excess of $41,000. This fact ordinarily would require that we decline to review the claim. See Tiber Holding Corp. v. Greenberg, 36 Conn. App. 670, 671-72, 652 A.2d 1063 (1995) (where all claims on appeal relate to merits of underlying judgment, review declined and appeal dismissed). We nonetheless conclude that the judgment must be corrected on the basis of equitable considerations because the relief granted was facially inconsistent with the complaint. See Altberg v. Paul Kovacs Tire Shop, Inc., supra, 31 Conn. App. 640 (where court on appeal found that trial court’s denial of motion to open was not unreasonable and did not constitute abuse of discretion, underlying judgment ordered corrected because relief granted was facially inconsistent with complaint); see also Practice Book § 17-41 (“[u]pon a default, the plaintiff can have no greater relief than that demanded in the complaint”).

“[C]ommon law principles do not authorize a general creditor to pursue the transferee in a fraudulent conveyance action for anything other than the specific property transferred or the proceeds thereof.” (Internal quotation marks omitted.) Crepeau v. Gronager, supra, 41 Conn. App. 314-15, quoting Derderian v. Derderian, 3 Conn. App. 522, 529, 490 A.2d 1008, cert. denied, 196 Conn. 810, 811, 495 A.2d 279 (1985); see also Austin v. Barrows, 41 Conn. 287, 299 (1874); Smith v. Blake, 1 Day (Conn.) 258, 262 (1804). In denying the defendant’s motion to open, the court stated that the defendant had improperly based her argument on case law developed several years after the judgment was rendered. The court, however, overlooked the fact that Crepeau, on which the defendant relied, cited our holding in Derderian, which was decided more than ten years earlier. See Crepeau v. Gronager, supra, 315. Accordingly, under Connecticut law at the time the judgment was rendered, a successful claim of fraudulent conveyance could not result in a judgment of liability against the transferee, joint and several or otherwise, on the underlying debt obligations owed by the transferor. See Derderian v. Derderian, supra, 529. We conclude, therefore, that the award was inconsistent with the complaint and that the court incorrectly rendered judgment against the defendant for money damages. See Practice Book § 17-41.

The plaintiff claims that the defendant’s motion to open and set aside the judgment was properly denied because it was not filed within four months following the date on which the judgment was rendered, as required under General Statutes § 52-212a. The defendant replies that adherence to the statutory requirement does not comport with modem notions of equity jurisprudence applicable in the present circumstances.

General Statutes § 52-212a provides in relevant part: “[A] civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. . . .” Where, however, “there is a judicial action of a trial court that requires a change in a judgment because it affects justice, an appellate court should effect that change.” Altberg v. Paul Kovacs Tire Shop, Inc., supra, 31 Conn. App. 642, citing Simpson v. Y.M.C.A. of Bridgeport, 118 Conn. 414, 418, 172 A. 855 (1934); Connecticut Mortgage & Title Guaranty Co. v. DiFrancesco, 112 Conn. 673, 674, 151 A. 491 (1930). “It is an abiding principle of jurisprudence that common sense does not take flight when one enters a courtroom.” (Internal quotation marks omitted.) OCI Mortgage Corp. v. Marchese, 56 Conn. App. 668, 682, 745 A.2d 819, cert. granted on other grounds, 253 Conn. 903, 753 A.2d 937 (2000). Although the defendant “ ‘slept on [her] rights’ for a perilously long period of time”; Cohen v. MBA Financial Corp., Superior Court, judicial district of New Haven at New Haven, Docket No. 379585 (July 2,1999) (25 Conn. L. Rptr. 3, 5); the record demonstrates quite clearly that the defendant seeks to correct an injustice in the original judgment that was contrary to existing law. See Derderian v. Derderian, supra, 3 Conn. App. 529.

In Cohen v. MBA Financial Corp., supra, 25 Conn. L. Rptr. 3, the plaintiff obtained a judgment of more than $56,000 against an individual defendant and a corporate defendant, despite allegations that the individual defendant was liable for only $1500. In granting the individual defendant’s subsequent motion to open the judgment against him because it was excessive, the court held that “[t]he entry of a judgment against the individual defendant in an amount far in excess of that alleged in the complaint was a mistake that equity must be allowed to address.” Id., 5.

Here, the court’s judgment against the defendant also was the result of judicial error. Under the facts stipulated to by the parties, the defendant received no gain, financial or otherwise, by the transferor’s act, and we conclude that she should not in law or in equity be forced to pay a debt for which she was not liable. Moreover, the record is devoid of evidence that the defendant knowingly participated in the transfer. To allow the plaintiff to benefit from a judgment against the defendant in excess of $41,000 that was contraiy to law at the time of its rendition “shocks the judicial conscience”; OCI Mortgage Corp. v. Marchese, supra, 56 Conn. App. 683; see Atwood v. Vincent, 17 Conn. 575, 582 (1846); and violates the principles of equity that govern our application of the law. The court’s denial of the defendant’s motion to open and set aside the money judgment perpetuated this injustice.

The judgment is reversed and the case is remanded with direction to grant the motion to open and set aside the money judgment against the defendant.

In this opinion the other judges concurred.

       The other defendant in this action is Robert S. Obenauf. Only Ardeth H. Obenauf has appealed. We refer in this opinion to Ardeth H. Obenauf as the defendant.

       Subsequent to the entry of judgment, Remington Investments, Inc., a successor in interest to Federal Deposit Insurance Corporation, was substituted as the plaintiff. We refer to Remington Investments, Inc., as the plaintiff.

       See also Practice Book § 17-4 (a), which provides: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which notice was sent. The parties may waive the provisions of this subsection or otherwise submit to the jurisdiction of the court.”