text:
    STATE OF CONNECTICUT v. MICHAEL MITCHELL
    (AC 19708)
    Lavery, C. J., and Spear and Hennessy, Js.
    Argued May 1
    officially released August 22, 2000

      Conrad Ost Seifert, special public defender, for the appellant (defendant).

      Rita M. Shair, assistant state’s attorney, with whom were Michael Dearington, state’s attorney, and, on the brief, John Waddock, senior assistant state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Michael Mitchell, 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 (a), robbery in the second degree in violation of General Statutes § 53a-135 (a) (2), kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), assault in the third degree in violation of General Statutes § 53a-61 (a) (1), attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a) (1) and 53a-70 (a) (1), and sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1). The defendant’s claim on appeal arises from the trial court’s instruction to the jury that it could infer from the defendant’s failure to produce certain witnesses that evidence from those witnesses would have been unfavorable to the defendant. The defendant claims that the court’s jury instruction was improper and that it constituted harmful error.

The jury reasonably could have found the following facts. On February 6, 1996, the defendant entered the victim’s boutique in New Haven. He showed the victim his wedding band and told her that he was looking for a Valentine’s Day gift for his wife. Several customers entered and left the store while the victim showed the defendant some pieces of jewelry. When the store was empty, the defendant grabbed the victim’s arm and told her that he was there to rob her. Noticing a pointed object protruding from the defendant’s jacket pocket, the victim gave him money from a desk drawer. The defendant then pushed her into the dressing room where he sexually assaulted her. He stopped after the victim had convinced him that she had HIV. He then went behind the desk, threw her purse at her and ordered her to dump everything out. He rifled through its contents and took money from another purse containing business proceeds. He then wiped the counters and the desk with a scarf from the store and, after the victim pleaded for her life, he left. The victim immediately called the police and later identified the defendant as the perpetrator.

At trial, the defendant presented an alibi defense. Specifically, his girlfriend testified that she picked up the defendant at his grandmother’s home on February 2, 1996. She further testified that the defendant stayed with her at her apartment in Bridgeport from February 2 to February 7, when she returned him to his grandmother’s home. She also testified that she shared the apartment with her niece and her niece’s boyfriend; however, the grandmother, the niece and the niece’s boyfriend were not presented as defense witnesses. At the state’s request, the court instructed the jury that the defendant’s failure to present those witnesses may be used to draw the inference that the witnesses would have provided evidence unfavorable to the defendant. The defendant took an exception to the instruction and subsequently appealed from his conviction.

The defendant claims that the court improperly instructed the jury pursuant to Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960). The defendant initially bases his claim on the vitality of the “missing witness rule” as set forth in Secondino. After the defendant filed his brief in this appeal, our Supreme Court abandoned the Secondino rule in criminal cases in State v. Malave, 250 Conn. 722, 739, 737 A.2d 442 (1999) (en banc), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000), holding that “the continued use of the Secondino instruction is unwarranted.” Id., 728. The issues remain, however, as to whether Malave applies retroactively in this case and, if so, whether the jury instruction constituted harmful error.

In State v. Young, 57 Conn. App. 566, 572, 750 A.2d 482 (2000), this court reiterated that Malave applies retroactively. As did the defendant in this case, the defendant in Young appealed from his conviction on the ground that the court improperly gave the jury a missing witness instruction. During the pendency of that appeal, however, our Supreme Court decided Malave. As we noted in Young, “[t]he Malave decision applies retroactively to this case because so doing will not produce substantial inequitable results and because our Supreme Court did not stipulate that the Malave decision should apply prospectively only. See Marone v. Waterbury, 244 Conn. 1, 10, 707 A.2d 725 (1998) (judgments that are not by their terms limited to prospective application are presumed to apply retroactively) . . . .” (Citation omitted; internal quotation marks omitted.) State v. Young, supra, 572, quoting State v. Quinones, 56 Conn. App. 529, 533, 745 A.2d 191 (2000). Because Malave applies retroactively, we now turn to the question of whether the Secondino instruction harmed the defendant. State v. Malave, supra, 250 Conn. 740-41; State v. Young, supra, 573.

“[T]he defendant has the appellate burden to establish harm flowing from the [instructional] error, in order to secure a reversal of the judgment.” (Internal quotation marks omitted.) State v. Malave, supra, 250 Conn. 741. In Malave, our Supreme Court acknowledged two lines of cases that articulate the standard of review for harmless error. “One line of cases states that the defendant must establish that it is more probable than not that the erroneous action of the court affected the result. . . . Another line of cases states that the defendant must establish that the trial court error caused him substantial prejudice.” (Citations omitted; internal quotation marks omitted.) Id.; see also State v. Young, supra, 57 Conn. App. 573. The court in Malave declined to resolve whether there was a functional difference between the two standards because it concluded that the defendant had failed to meet his burden under either standard in light of the “strong” evidence against him. State v. Malave, supra, 741. In that case, the victim knew the defendant, identified him to hospital personnel as the assailant shortly after the crime and selected his photograph from a photographic display. A second victim also identified the defendant at trial as the assailant.

As in Malave, we find that the defendant here failed to meet his burden of proof under either the “more probable than not” or the “substantial prejudice” standard. The state offered strong evidence that the defendant was the perpetrator. First, the victim had ample opportunity to view the defendant. Before the assault, the victim and the defendant had had a conversation and, during the assault, they remained in close proximity. Additionally, the entire exchange lasted approximately one hour in a well-lit store. The next day, the victim identified the defendant from a photographic array, stating that she was 99 percent sure of his identity, and, two days after the incident, she pointed him out on the street with 100 percent certainty. Her description of the defendant was further substantiated by evidence that the defendant wore a thin gold ring and had a cut on his nose. Furthermore, the jury reasonably could have rejected as unreliable the only alibi testimony offered, which was that of the defendant’s girlfriend. Moreover, the court’s instruction did not require the jury to draw an inference from the defendant’s failure to produce certain witnesses; rather, it apprised the jury that it could draw such an inference if the Second,ino requirements had been met. See id., 742.

We conclude that the identification evidence offered by the state in this case was so strong that it is reasonable to presume that the jury would have found the defendant guilty even if the court had not given the Secondino instruction. Because the defendant has not established “that the jury’s evaluation . . . would have been different had the court not given the Secondino instruction”; id., 743; we find that the defendant did not establish that the Secondino instruction constituted harmful error.

The judgment is affirmed.

In this opinion the other judges concurred.

       In Secondino v. New Haven Gas Co., 147 Conn. 672, 674-75, 165 A.2d 598 (1960), our Supreme Court held that the failure to produce a witness for trial who is available and whom a party would naturally be expected to call, warrants an adverse inference against that party. This is commonly referred to as the “missing witness rule” or the Secondino rule.

       Although this court found a contrary result with respect to the harmfulness of the error in Young, Young is distinguishable from the present case. In Young, although the witness also had been charged in connection with the incident involving the defendant and had been advised to invoke his privilege against self-incrimination, the trial court ruled that he was available and, if his testimony were favorable, he would naturally have been called as a defense witness. State v. Young, supra, 57 Conn. App. 571. In determining whether the Secondino instruction had harmed the defendant, this court noted that the prosecutor had repeatedly referred to the witness’ absence in closing argument, and, because it was unlikely that the defendant could have obtained the witness’ testimony, he “was powerless to contest the potential inference.” Id., 575. Also, the victim’s credibility “was critical to the state’s case”; id., 573; and the fact that the defendant had been acquitted of some of the charges showed that her testimony was not totally accepted. Id., 575. We concluded that it was more probable that not that the “state of the evidence, coupled with the state’s heavy reliance on the missing witness inference in its arguments to the jury . . . affected the result and caused the defendant substantial prejudice.” Id. Here, although the state’s case hinged on the reliability of the victim’s identification, there was strong evidence supporting that identification.


source: Caselaw Access Project

author: DALY, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JOHN E. MORTON III
    (AC 18466)
    Hennessy, Pellegrino and Daly, Js.
    Argued June 12
    officiallyreleased August 22, 2000

      Norman A. Pattis, with whom, on the brief, was Rosemarie Paine, for the appellant (defendant).

      Robin S. Schwartz, special deputy assistant state’s attorney, with whom, on the brief, was Patricia A. Swords, state’s attorney, and Matthew C. Gedansky, assistant state’s attorney, for the appellee (state).
   Opinion

DALY, J.

The defendant, John E. Morton III, appeals from the judgments of conviction, rendered after a jury trial, of two counts of failure to appear in the second degree in violation of General Statutes § 53a-173, two counts of criminal violation of a protective order in violation of General Statutes § 53a-110b, one count of unlawful restraint in the first degree in violation of General Statutes § 53a-95, one count of disorderly conduct in violation of General Statutes § 53a-182 and one count of threatening in violation of General Statutes § 53a-62. Three separate informations were consolidated for trial. On appeal, the defendant claims that the trial court improperly consolidated the informations. We affirm the judgments of the trial court.

The following facts and procedural history are relevant for our resolution of this appeal. On November 21, 1995, the victim, Nicole Carvel, and the defendant lived together. On that date, they got into an argument that culminated in the defendant’s kicking a door in and threatening to kill her. The police were called to the home, and the defendant was arrested. The defendant was charged with disorderly conduct, threatening and, after missing a scheduled court date, failure to appear in the second degree.

On June 22, 1996, the victim and the defendant, then married, got into another argument in which the defendant struck her in the back of her head. The victim struck him back, and he placed her in a headlock. The defendant then left the premises and later returned to gather some of his clothing. He and the victim resumed then' argument, which ultimately culminated in the defendant’s threatening to kill her. She called the police and they arrested the defendant. The defendant was charged with disorderly conduct, threatening, criminal violation of a protective order and failure to appear in the second degree.

On March 15, 1997, the defendant, then separated from the victim, contacted her and asked her to return a steam cleaner to him. The victim and her sister brought the steam cleaner to the defendant’s mother’s house. As they were unloading it from the car, the defendant, while holding a knife, placed both women in headlocks. After a struggle, in which the victim was cut on her left arm by the knife, both women broke free. The victim ran to a neighboring house and called the police. After the police officers saw that the victim was wounded, they arrested the defendant. The defendant was charged with attempt to commit assault in the first degree, assault in the second degree, two counts of unlawful restraint in the first degree, criminal violation of a protective order and threatening.

Before jury selection, the state filed a motion seeking to consolidate for trial the charges against the defendant contained in three informations that had been filed in connection with the previously mentioned incidents. The court granted the state’s motion. As to the incident of November 21,1995, the jury found the defendant not guilty of disorderly conduct and threatening, but found him guilty of failure to appear in the second degree. As to the incident of June 22, 1996, the jury found him not guilty of threatening, but guilty of one count each of disorderly conduct, criminal violation of a protective order and failure to appear in the second degree. As to the incident of March 15, 1997, the jury found the defendant not guilty of attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-59 (a), assault in the second degree in violation of General Statutes § 53a-60a and one count of unlawful restraint in the first degree. The juiy, however, found him guilty of one count each of unlawful restraint in the first degree, criminal violation of a protective order and threatening. The court then sentenced the defendant to a total effective sentence of nineteen years, execution suspended, with twelve and one-half years to serve and three years of probation.

The defendant claims that the court improperly consolidated the three informations because the third information should be considered to have alleged brutal or shocking conduct, thereby precluding consolidation pursuant to State v. Boscarino, 204 Conn. 714, 722-23, 529 A.2d 1260 (1987). We disagree.

“General Statutes § 54-57 and Practice Book § [41-19 (formerly § 829)] expressly authorize a trial court to order a defendant to be tried jointly on charges arising separately. In deciding whether to sever informations joined for trial, the trial court enjoys broad discretion, which, in the absence of manifest abuse, an appellate court may not disturb. . . . The defendant bears a heavy burden of showing that the denial of severance resulted in substantial injustice and that any resulting prejudice was beyond the curative power of the court’s instructions. . . . [Wjhether a joint trial will be substantially prejudicial to the rights of the defendant . . . means something more than that a joint trial will be less advantageous to the defendant. . . .

“We recognize that an improper joinder may expose a defendant to potential prejudice for three reasons. First, when several charges have been made against the defendant, the jury may consider that a person charged with doing so many things is a bad [person] who must have done something, and may cumulate evidence against him .... Second, the jury may have used the evidence of one case to convict the defendant in another case even though that evidence would have been inadmissible at a separate trial. . . . [Third] joinder of cases that are factually similar but legally unconnected . . . presents] the . . . danger that a defendant will be subjected to the omnipresent risk . . . that although so much [of the evidence] as would be admissible upon any one of the charges might not [persuade the jury] of the accused’s guilt, the sum of it will convince them as to all. . . . Nevertheless, because join-der foster[s] economy and expedition of judicial administration ... we consistently have recognized a clear presumption in favor of joinder and against severance . . . and, therefore, absent an abuse of discretion, we will not second guess the considered judgment of the trial court as to the joinder or severance of two or more charges.

“The court’s discretion regarding joinder, however, is not unlimited; rather, that discretion must be exercised in a manner consistent with the defendant’s right to a fair trial. Consequently, we have identified several factors that a trial court should consider in deciding whether a severance may be necessary to avoid undue prejudice resulting from consolidation of multiple charges for trial. These factors include: (1) whether the charges involve discrete, easily distinguishable factual scenarios; (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant’s part; and (3) the duration and complexity of the trial. ... If any or all of these factors are present, a reviewing court must decide whether the trial court’s jury instructions cured any prejudice that might have occurred.” (Citations omitted; internal quotation marks omitted.) State v. Delgado, 243 Conn. 523, 531-33, 707 A.2d 1 (1998).

In the present case, the defendant concedes that factors one and three, as discussed in Delgado, are not applicable. Therefore, our review is limited to whether his conduct in the March 15, 1997 incident rises to the level of brutal or shocking behavior and, if so, whether the court’s jury instruction cured any prejudice that might have occurred as a result of consolidating the informations.

As previously stated, on March 15,1997, as the victim and her sister were unloading a steam cleaner at the defendant’s mother’s house, the defendant, while holding a knife, placed both women in headlocks. During the struggle, the victim was cut on her left arm by the knife. The victim and her sister, however, broke free and called the police.

In researching case law regarding what constitutes brutal or shocking behavior, it is clear that although, as the defendant stated, assault involves a certain element of violence, the conduct of the defendant in this case was not so brutal or shocking as to create a substantial risk that the jury would treat the evidence cumulatively.

In State v. Jennings, 216 Conn. 647, 583 A.2d 915 (1990), the court, in citing Boscarino and State v. Herring, 210 Conn. 78, 554 A.2d 686, cert. denied, 492 U.S. 912,109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989), reiterated that when the crimes charged “can be characterized as violent, the test becomes whether the facts of one are ‘so brutal or shocking’ as to amount to prejudice if tried together. The crimes that were allowed to be consolidated for trial in Jennings were assault and kidnapping in one incident and criminal attempt to commit assault and criminal trespass in the other incident. . . . The two cases consolidated for trial in Jennings concerned one assault in which the defendant allegedly cut his victim’s neck with a box cutter, and then punched, kicked and ‘threw her about a parking lot,’ and another assault in which he cut the victim’s finger and arm with a knife.” State v. Stevenson, 43 Conn. App. 680, 690-91, 686 A.2d 500 (1996), cert. denied, 240 Conn. 920, 692 A.2d 817 (1997). The Jennings court found that the physical harm that was inflicted on the victim in that case, although serious, was not disabling and did not rise to the level of the type of physical harm considered brutal or shocking in Boscarino. State v. Jennings, supra, 659.

In the present case, the defendant, while holding a knife, cut the victim on her arm as he was attacking her. She did not seek medical attention for her injuries. Therefore, as the court found in Jennings, although the defendant inflicted physical harm on the victim, her injuries were not disabling and could not be seen as rising to the level of the type of physical harm considered brutal or shocking in Boscarino, which involved kidnapping, burglary, and multiple counts of assault and sexual assault.

Furthermore, even if the defendant’s conduct could fairly be seen as brutal or shocking, we still must decide whether the court’s jury instruction cured any prejudice that might have occurred. “[Although a curative instruction is not inevitably sufficient to overcome the prejudicial impact of [inadmissible other crimes] evidence . . . where the likelihood of prejudice is not overwhelming, such curative instructions may tip the balance in favor of a finding that the defendant’s right to a fair trial has been preserved.” (Internal quotation marks omitted.) State v. Hermann, 38 Conn. App. 56, 63-64, 658 A.2d 148, cert. denied, 235 Conn. 903, 665 A.2d 904 (1995). “Barring contrary evidence [and there is none], we must presume that juries follow the instructions given them by the trial judge.” (Internal quotation marks omitted.) State v. Radzvilowicz, 47 Conn. App. 1, 32, 703 A.2d 767, cert. denied, 243 Conn. 955, 704 A.2d 806 (1997).

In the present case, even if the defendant’s conduct could be considered brutal or shocking, any possible prejudice caused by the consolidation of the informa-tions for trial unquestionably was ameliorated by the court’s explicit instruction to the jury that it should consider the offenses separately. By returning a verdict of not guilty on the charges of threatening in two of the informations and guilty of threatening in the third information, the jury evidently was able to consider the charges in the three informations separately. Moreover, we cannot conclude that consolidating the three infor-mations caused the jury to be substantially prejudiced against the defendant in light of the fact that it found him not guilty of the most serious charges, assault in the second degree and attempt to commit assault in the first degree.

It is clear that the court’s instruction was successful in that it precluded the jury from treating the evidence of each incident cumulatively. We therefore conclude that the court did not abuse its discretion in consolidating the three informations.

The judgments are affirmed.

In this opinion the other judges concurred.

       At the time, the complainant also was six months pregnant.

       During the struggle, the defendant threatened the complainant.

       General Statutes § 54-57 provides: “Whenever two or more cases are pending at the same time against the same party in the same court tor offenses of the same character, counts for such offenses may be joined in one information unless the court orders otherwise.”

       Practice Book § 41-19, formerly § 829, provides: “The judicial authority may, upon its own motion or the motion of any party, order that two or more informations, whether against the same defendant or different defendants, be tried together.”

       The case we cite as authority for our conclusion, State v. Jennings, 216 Conn. 647,583 A.2d 915 (1990), clearly can be distinguished from the present case. Jennings can, however, provide guidance for our determination of whether the defendant’s behavior can fairly be considered brutal or shocking.

       The defendant’s conduct in the incidents of November 21, 1995, and June 22, 1996, that of kicking down a door, striking the complainant in the back of the head and putting her into a headlock, certainly is violent.


author: MIHALAKOS, J.

text:
    IN RE MARK R.

    (AC 19174)
    Schaller, Spear and Mihalakos, Js.
    Argued June 12
    officially released August 22, 2000

      John R. Day, special public defender, for the appellant (respondent).

      James M. Ralls, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Donald MacCalmon, assistant juvenile state’s attorney, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

MIHALAKOS, J.

The respondent appeals from the judgment adjudicating him a delinquent for having committed the crime of sexual assault in the fourth degree in violation of General Statutes § oSaUSa. On appeal, the respondent claims that the trial court improperly found that there was sufficient evidence to support the finding that he had committed sexual assault in the fourth degree. We affirm the judgment of the trial court.

The following facts were found by the trial court. The victim was a twelve year old female grade school student in New Haven. On April 15, 1998, the victim and two other girls were on their way to the victim’s locker, which was located in her classroom, when they were followed by the respondent and two other boys. As the victim entered her classroom, the two other girls left, stating that they would be “right back.” At this time, the respondent and the two other boys entered the classroom, closed the door and told the victim that she had to kiss one of the boys, T, or else she could not leave the classroom. The victim resisted, banged on the door and was subsequently let out of the classroom. As she went outside the classroom, T grabbed her hand and attempted to prevent her from telling anyone. She hit T and proceeded down the hallway.

The victim began to run up the stairs located in the hallway when she and the respondent bumped heads, at which time the respondent began hitting her buttocks. After the victim pushed the respondent away, T grabbed her hands and pushed her against the wall. The respondent and T started pulling at her pants. The victim told them to stop, but the respondent refused and continued to pull her pants down while she tried to pull them back up. T also touched the victim’s breasts inside her shirt. The victim then began to scream and managed to get away, running down the hall.

A petition was filed in the Superior Court for juvenile matters alleging that the respondent was a delinquent for having committed sexual assault in the third degree and unlawful restraint in the second degree. On November 10,1998, the court granted the respondent’s motion for judgment of acquittal as to those charges, but allowed the petitioner to proceed on the lesser included offense of sexual assault in the fourth degree. The court found that the respondent had committed sexual assault in the fourth degree and adjudicated him a delinquent. On December 10, 1998, at the dispositional hearing, the respondent was discharged with a warning. This appeal followed.

The respondent claims that the court improperly found that there was sufficient evidence to support the finding that he had committed sexual assault in the fourth degree pursuant to § 53a-73a. Specifically, he claims that the petitioner had failed to prove that he touched the victim’s intimate parts for the purposes of either sexual gratification or humiliating and degrading the victim. We do not agree.

“The standard for reviewing sufficiency of the evidence claims is well settled in this state. . . . [0]ur courts apply a two-prong test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Perry, 48 Conn. App. 193, 196, 709 A.2d 564, cert. denied, 244 Conn. 931, 711 A.2d 729 (1998).

“[I]n viewing evidence which could yield contrary inferences, the [trier of fact] is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the [trier of fact’s] function is to draw whatever inferences from evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 132-33, 646 A.2d 169 (1994).

Section 53a-73a (a) (2) provides that a person is guilty of sexual assault in the fourth degree when “such person subjects another person to sexual contact without such other person’s consent . . . .” General Statutes § 53a-65 (3) defines “sexual contact” as “any contact with the intimate parts of a person . . . for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person . . . .” General Statutes § 53a-65 (8) defines “intimate parts” as “the genital area, groin, anus, inner thighs, buttocks or breasts.”

For behavior to constitute a sexual assault in the fourth degree, there must be “sexual contact” as defined by statute. In this case, the respondent admitted to “smacking” the victim’s buttocks more than once and this constituted “sexual contact” as defined in § 53a-65 (3). The court, in fact, made a specific finding that the respondent had slapped the victim’s buttocks and concluded that this alone was sufficient to constitute sexual assault in the fourth degree. While the court made no specific finding that the purpose for the respondent’s actions was to humiliate or to degrade the victim, “[w]e give deference to the evidence and the reasonable inferences drawn therefrom that support the trial court’s determination of guilt.” (Internal quotation marks omitted.) State v. Wilson, 52 Conn. App. 802, 806, 729 A.2d 778 (1999). Here, the record shows that the respondent attempted to pull down the victim’s pants and smacked the victim’s buttocks more than once. Furthermore, these acts had been carried out in a school hallway in front of several people. These facts could support a reasonable inference that the respondent actively participated in activities intending to degrade or humiliate the victim.

The respondent’s contention that he did not have sexual contact with the victim because he did not touch the victim’s “intimate parts,” but rather touched the victim’s clothes, is incorrect. To have “sexual contact” as defined by the statute it is irrelevant whether the respondent’s contact with the victim was through clothing or with bare skin. In State v. Eric T., 8 Conn. App. 607, 613, 513 A.2d 1273 (1986), we rejected a respondent’s claim that there was no sexual contact sufficient to constitute sexual assault in the fourth degree because he had not touched the victim’s bare skin. This court held that “as long as the contact was for the purpose of sexual gratification, whether direct or indirect, whether through clothing or bare skin, it will satisfy the definition of ‘sexual contact.’ ” Id. In this case, the respondent’s sexual contact with the victim was clearly done without the victim’s consent and with the intent to degrade or to humiliate the victim. Given the facts, the respondent’s admitted “slapping” of the victim’s buttocks alone was sufficient evidence to establish sexual assault in the fourth degree pursuant to § 53a-73a.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-73a (a) provides in relevant part: “A person is guilty of sexual assault in the fourth when ... (2) such person subjects another person to sexual contact without such other person’s consent

       T was also charged with sexual assault. The cases were tried separately.

       This ended the respondent’s involvement in the incident.


author: PER CURIAM.

text:
    COMPUTERWORKS, INC. v. BOARD OF EDUCATION OF THE TOWN OF LEDYARD ET AL.
    (AC 19466)
    Foti, Zarella and O’Connell, Js.
    Argued June 2
    officially released August 22, 2000

      Victor J. S'pata, Jr., for the appellant (plaintiff).

      Hugh Culhbertson, with whom were Jody P. Benbow and, on the brief, Frederick L. Dorsey, for the appel-lees (defendants).
   Opinion

PER CURIAM.

The controlling issue in this appeal is whether the trial court properly rendered judgment dismissing the second count of the plaintiffs complaint. The sole reference to the second count in the trial court’s memorandum of decision is as follows: “The plaintiffs argument that the second count should survive a motion to dismiss is unavailing.” The plaintiff did not seek an articulation of this naked declaration.

“Under these circumstances, we . . . are left to surmise or speculate as to the existence of a factual predicate for the trial court’s rulings. Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by the trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the plaintiffs claim] would be entirely speculative.” (Internal quotation marks omitted.) Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 608, 710 A.2d 190 (1998), quoting Alix v. Leech, 45 Conn. App. 1, 5, 692 A.2d 1309 (1997). “The duty to provide this court with a record adequate for review rests with the appellant. Practice Book § 60-5 . . . .” (Citation omitted; internal quotation marks omitted.) Lombardi v. Lombardi, 55 Conn. App. 117, 118, 737 A.2d 988 (1999), cert. denied, 252 Conn. 943, 747 A.2d 520 (2000).

The judgment is affirmed.


text:
    KATHRYN LUCAS v. GENERAL ACCIDENT INSURANCE COMPANY OF AMERICA
    (AC 19091)
    MihalaJkos, Zarella and O’Connell, Js.
    Argued March 20
    officially released August 29, 2000

      Albert E. Sheary, with whom was Elizabeth A. Zem-bko, for the appellant (plaintiff).

      Michael M. Wilson, with whom, on the brief, was Anthony P. Fusco, for the appellee (defendant).
   Opinion

PER CURIAM.

This is an appeal brought by the plaintiff, Kathryn Lucas, from the judgment of the trial court confirming an arbitration award. The sole issue on appeal is whether the plaintiff was a resident in the home of the defendant’s insured at the time of her motor vehicle accident. Two of the three arbitrators concluded that the plaintiffs mere physical presence in her father’s home did not establish residency and, therefore, she was not covered under the underinsured motorist provisions of her father’s policy.

Our examination of the record and briefs persuades us that the judgment of the trial court confirming the arbitration award should be affirmed. The issue presented was resolved properly by the court’s thoughtful and comprehensive memorandum of decision. See Lucas v. General Accident Ins. Co. of America, 46 Conn. Sup. 502, 759 A.2d 156 (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.


author: LAVERY, C. J.

text:
    A. JAMES ZELLER ET AL. v. JOSEPH CONSOLINI ET AL.
    (AC 19372)
    Lavery, C. J., and Spear and Cretella, Js.

      Argued March 28
    officially released August 29, 2000

      James A. Zeller, with whom, on the brief, was Joseph A. Mengacci, for the appellants (plaintiffs).

      Martin B. Margulies, with whom, on the brief, were Charlene Lavoie and Peter Schwartz, for the appel-lees (defendants).
   Opinion

LAVERY, C. J.

The plaintiffs appeal from the judgment of the trial court rendered after the granting of the defendants’ motion for summary judgment. The plaintiffs contend that the court improperly (1) rendered summary judgment because there was a genuine issue of material fact as to whether the defendants’ prior actions lacked probable cause and (2) imposed on the plaintiffs the burden of establishing that the defendants were barred by statute or regulation from applying to rezone the plaintiffs’ property. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. The plaintiffs, A. James Zeller and Torringford Commercial Associates Limited Partnership, claim that the defendants tortiously interfered with a business relationship and initiated vexatious litigation. These claims arise out of challenges made by the defendants to the plaintiffs’ applications to the planning and zoning commission of the city of Torrington (commission). Zeller owns six parcels of land in Torrington totaling approximately thirty-six acres, and is the general partner and majority shareholder of the plaintiff Torringford Commercial Associates Limited Partnership. The defendants consist of individual members of an unincorporated association known as Neighbors Against the Mall, attorney Maureen E. Donohue and the law firm of Howd, Lavieri and Finch.

In its memorandum of decision granting the defendants’ motion for summary judgment, the court stated: “In 1987 and 1988, the plaintiffs sought and received zone changes for the subject property. After each zone change, the neighborhood defendants appealed the decision of the planning and zoning commission to the Superior Court. In both instances, the court dismissed the appeals; in both instances, these defendants sought certification to appeal further to the Appellate Court, which that court denied. In 1990, the inland wetlands commission of the city of Torrington granted a permit to the plaintiffs relating to the development of a mall on this property. The neighborhood defendants appealed that decision to the Superior Court, which dismissed the appeal. Certification was granted by the Appellate Court, and that court affirmed the Superior Court judgment dismissing the appeal in September, 1992.

“The events forming the basis of the plaintiffs’ complaint here began in February, 1992, when the neighborhood defendants applied to the planning and zoning commission for the city of Torrington for a zone change of the subject property owned by the plaintiffs from restricted commercial to industrial park. Their application was denied, and through the representation of the attorney defendants, the neighborhood defendants appealed to the Superior Court. The plaintiff Zeller intervened as a defendant in that appeal, and the appeal was dismissed in March, 1993. The plaintiffs brought this action, claiming that the defendants knew that the plaintiffs had entered into a contract in June, 1991, to sell the subject property to a development company, conditioned on the plaintiffs’ ability to deliver a final, nonappealable zoning certificate and zoning approvals for the property. The plaintiffs allege that the defendants’ actions in seeking a zone change and appealing the denial to the Superior Court were sham proceedings, brought without probable cause and with improper motives.”

The defendants moved for summary judgment and argued that, as a matter of law, their actions were based on probable cause so that judgment on all counts must enter in their favor. In a thoughtful and thorough memorandum of decision, the court, applying the Noerr-Pen- nington doctrine, granted the motion for summary judgment in favor of the defendants. The plaintiffs appealed to this court.

I

The plaintiffs claim that the court improperly rendered summary judgment for the defendants because there was a genuine issue of material fact as to whether the defendants’ prior application for a zoning change was supported by probable cause. We disagree.

“Our standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Practice Book § 384 [now § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995). In deciding a motion for summaiy judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . Tarzia v. Great Atlantic & Pacific Tea Co., 52 Conn. App. 136, 145, 727 A.2d 219 [cert. granted on other grounds, 248 Conn. 920, 734 A.2d 569] (1999).

“On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Avon Meadow Condominium Assn., Inc. v. Bank of Boston Connecticut, 50 Conn. App. 688, 693, 719 A.2d 66, cert. denied, 247 Conn. 946, 723 A.2d 320 (1998). Because the trial court rendered judgment for the defendants as a matter of law, our review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record. . . . Gateway Co. v. DiNoia, 232 Conn. 223, 229, 654 A.2d 342 (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.” (Internal quotation marks omitted.) Kramer v. Petisi, 53 Conn. App. 62, 66-67, 728 A.2d 1097, cert. denied, 249 Conn. 919, 733 A.2d 229 (1999).

A

We first consider the appropriate doctrine to apply to cases such as these, a question of first impression in our appellate courts. The defendants urge us to adopt, as the trial court did, the reasoning of a trio of federal antitrust cases, California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S. Ct. 609, 30 L. Ed. 2d 642 (1972), United Mine Workers v. Pennington, 381 U.S. 657, 85 S. Ct. 1585, 14 L. Ed. 2d 626 (1965), Eastern Railroad Presidents Conference v.Noerr Motor Freight, Inc., 365 U.S. 127, 81 S. Ct. 523, 5 L. Ed. 2d 464 (1961), and their progeny, collectively referred to as the Noerr-Pennington doctrine. In short, the Noerr-Pennington doctrine “shields from the Sherman [Antitrust] Act [15 U.S.C. § 1 et seq.] a concerted effort to influence public officials regardless of intent or purpose.” United Mine Workers v. Pennington, supra, 670. The United States Supreme Court has reasoned that “it would be destructive of rights of association and of petition to hold that groups with common interests may not, without violating the antitrust laws, use the channels and procedures of state and federal agencies and courts to advocate their causes and points of view respecting resolution of their business and economic interests vis-a-vis their competitors.” Califomia Motor Transport Co. v. Trucking Unlimited, supra, 510-11.

The Noerr-Pennington doctrine has evolved from its antitrust origins to apply to a myriad of situations in which it shields individuals from liability for petitioning a governmental entity for redress. “[A]lthough the Noerr-Pennington defense is most often asserted against antitrust claims, it is equally applicable to many types of claims which [seek] to assign liability on the basis of the defendant’s exercise of its first amendment rights.” (Internal quotation marks omitted.) Central Telecommunications, Inc. v. TCI Cablevision, Inc., 800 F.2d 711, 717 n.7 (8th Cir. 1986), cert. denied, 480 U.S. 910, 107 S. Ct. 1358, 94 L. Ed. 2d 528 (1987). For example, Noerr-Pennington has been recognized as a defense to actions brought under the National Labor Relations Act, 29 U.S.C. § 151 et seq.; Bill Johnson’s Restaurants, Inc. v. National Labor Relations Board, 461 U.S. 731, 741, 103 S. Ct. 2161, 76 L. Ed. 2d 277 (1983); state law claims of tortious interference with business relations; NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913-15, 102 S. Ct. 3409, 73 L. Ed. 2d 1215 (1982); federal securities laws; Havoco of America, Ltd. v. Hollobow, 702 F.2d 643, 650 (7th Cir. 1983); and wrongful discharge claims. San Filippo v. Bongiovanni, 30 F.3d 424, 438-43 (3d Cir. 1994), cert. denied, 513 U.S. 1082, 115 S. Ct. 735, 130 L. Ed. 2d 638 (1995).

Although the Noerr-Pennington doctrine provides broad coverage to petitioning individuals or groups, its protection is not limitless. In Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., supra, 365 U.S. 144, the United States Supreme Court, albeit in dictum, established a “sham exception” to the general rule, stating: “There may be situations in which a publicity campaign, ostensibly directed toward influencing governmental action, is a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor and the application of the Sherman Act would be justified.” Id. In short, petitioning activity is not protected if such activity is a mere sham or pretense to interfere with no reasonable expectation of obtaining a favorable ruling. See Litton Systems, Inc. v. American Telephone & Telegraph Co., 700 F.2d 785, 809-12 (2d Cir. 1983), cert. denied, 464 U.S. 1073, 104 S. Ct. 984, 79 L. Ed. 2d 220 (1984). In Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49, 60-62, 113 S. Ct. 1920, 123 L. Ed. 2d 611 (1993), the court outlined a two part test to define sham litigation. First, the lawsuit must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits. Id., 60. Second, “the court should focus on whether the baseless lawsuit conceals an attempt to interfere directly with the business relationships of a competitor . . . through the use [of] the governmental process—as opposed to the outcome of that process—as an anticompetitive weapon . . . .” (Citations omitted; internal quotation marks omitted.) Id., 60-61. Essentially, then, a sham involves a defendant whose activities are not genuinely aimed at procuring favorable governmental action in any form. Video International Production, Inc. v. Warner-Amex Cable Communications, Inc., 858 F.2d 1075, 1082 (5th Cir. 1988), cert. denied sub nom. Dallas v. Video International Productions, Inc., 490 U.S. 1047, 109 S. Ct. 1955, 104 L. Ed. 2d 424 (1989).

Application of the Noerr-Pennington doctrine to the situation in this case—petitioning activity directed at local governments—already is well established. E.g., Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 379-84, 111 S. Ct. 1344, 113 L. Ed. 2d 382 (1991) (city council); Juster Associates v. Rutland, 901 F.2d 266, 270-72 (2d Cir. 1990) (city); Racetrac Petroleum, Inc. v. Prince George’s County, 786 F.2d 202, 203 (4th Cir. 1986) (county zoning board); Bob Layne Contractor, Inc. v. Bartel, 504 F.2d 1293, 1296 (7th Cir. 1974) (city zoning board and council). Indeed, many of our own trial courts have applied the Noerr-Pennington doctrine in their decisions. E.g., Roncari Development Co. v. GMG Enterprises, Inc., 45 Conn. Sup. 408, 414, 718 A.2d 1025 (1997), citing Connecticut National Bank v. Mase, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 269180 (January 31, 1991); Abrams v. Knowles, Superior Court, judicial district of New London at Norwich, Docket No. 95287 (December 4, 1990) (3 Conn. L. Rptr. 9); Yale University School of Medicine v. Wurtzel, Superior Court, judicial district of New Haven, Docket No. 275314 (November 9, 1990) (2 Conn. L. Rptr. 813).

In addition, the United States Court of Appeals for the Second Circuit has predicted that Connecticut’s appellate courts probably would apply the Noerr-Pen-nington doctrine and the accompanying sham exception when given the opportunity to do so. “We believe that Connecticut’s courts would be guided by the strong suggestions from the federal courts that imposing liability for the act of filing a non-sham lawsuit would present serious constitutional problems, and would construe Connecticut law to avoid those problems. Especially since Noerr-Pennington’s statutory exemption is defined in terms of first amendment activity, we are confident that Connecticut’s courts would carve out a similar exception to [the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.] and the common law, whether or not they believed that they were required to do so by the Constitution.” Suburban Restoration Co. v. ACMAT Corp., 700 F.2d 98, 102 (2d Cir. 1983); see also T.F.T.F. Capital Corp. v. Marcus Dairy, Inc., 33 F. Sup. 2d 122, 125-26 (D. Conn. 1998). We agree.

The Noerr-Pennington doctrine subordinates antitrust considerations and commercial expediency to the constitutional rights of individuals and groups to petition their government. Furthermore, failure to apply the Noerr-Pennington doctrine aggressively may create a “chilling effect” on the first amendment right to petition in zoning and other matters. See Ottensmeyer v. Chesapeake & Potomac Telephone Co., 756 F.2d 986, 993-94 (4th Cir. 1985). Indeed, such a chilling effect can be a virtual deep freeze when individual citizens not versed in the legal system and without financial resources do not exercise potentially meritorious legal challenges for fear of costly and protracted, retributive litigation from opponents.

The Noerr-Pennington doctrine is a well established body of law applicable to a wide variety of situations involving petitioning activity, including local zoning and other municipality matters. Seventeen years later, we fulfill the Second Circuit’s prophecy and adopt the Noerr-Pennington doctrine and its accompanying sham exception as the applicable analysis for cases such as this one.

B

For the foregoing reasons, we now apply the Noerr-Pennington doctrine to this case. The plaintiffs claim that the defendants’ actions were mere sham proceedings and invoke Noerr-Pennington’s sham exception. Applying the concepts previously discussed, we conclude that the court properly determined that there were no disputed facts, and that as a matter of law the defendants’ actions were not objectively baseless and were not a sham that would strip away the protection of the Noerr-Pennington doctrine.

Activities found to be a sham involve actions rife with abusive intent and absent any indicia of success. Factors present in sham litigation include, but are not limited to, the presence of repetitive litigation (although one action may constitute a sham under certain conditions), deliberate fraud, supplying false information, and whether lower courts have stated or implied that the action is frivolous or objectively baseless and whether they have dismissed it out of hand. Liberty Lake Investments, Inc. v. Magnuson, 12 F.3d 155, 158-59 (9th Cir. 1993), cert. denied, 513 U.S. 818, 115 S. Ct. 77, 130 L. Ed. 2d 32 (1994); Litton Systems, Inc. v. American Telephone & Telegraph Co., supra, 700 F.2d 810; see generally California Motor Transport Co. v. Trucking Unlimited, supra, 404 U.S. 513.

For example, in Landmarks Holding Corp. v. Bermant, 664 F.2d 891, 892 (2d Cir. 1981), real estate developers appealed from a summary judgment rendered against them in their action alleging that competitors and local property owners had engaged in sham litigation to prevent the developers from building a regional shipping center in Hamden. The Second Circuit noted that the developers had alleged numerous activities that, if proven, would support the conclusion that the defendants actions were nothing more than a sham. Id., 896. For example, the defendants appealed to the Connecticut Court of Common Pleas and to our Supreme Court from each decision of the Hamden planning and zoning commission, knowing that they lacked standing to do so. Id. Each such appeal was dismissed. The defendants deliberately protracted the proceedings by misrepresenting to the chief justice of our Supreme Court that they needed extra time to have the record printed. Id. Although a letter from the counsel for certain of the defendants stated that the defendants sought to expedite the appeal, a copy of the letter produced from the defendants’ files bore on it, in the handwriting of one defendant, the words, “[t]his is purely bull to show that we axe not trying to delay proceedings.” Id., 894. In addition, an attorney representing competitors and local property owners failed to communicate a settlement offer from the developers to the local property owners. Id., 896. Acceptance of the offer would have removed a major obstacle to the rapid resolution of certain appeals then remaining before our Supreme Court. Id. “In sum, by the bringing of numerous mer-itless appeals, by deliberate delay in the prosecution of those appeals, by the solicitation and subsidization of meritless litigation by the landowners, and by their attorney’s failure to convey a settlement offer . . . [the defendants] successfully stalled plaintiffs’ applications for zoning changes on the . . . property for five years. This delay ultimately forced the plaintiffs to abandon their venture.” Id., 896. The Second Circuit, concluding that the defendants had no reasonable basis for their appeals and had engaged in subterfuge, reversed the District Court’s grant of summary judgment in favor of the defendants. Id., 892.

Similar chicanery occurred in Pound Hill Corp. v. Perl, 668 A.2d 1260,1262 (R.I. 1996), in which the plaintiff developer applied for a zone change for property it had contracted to purchase. The zone change was approved, and the plaintiff became the owner of the property. Id. At that point, one of the defendants, a religious organization that earlier had sought to purchase the property, began a vigorous campaign to frustrate the plaintiffs efforts to obtain town council approval. Id. The organization claimed that the plaintiff had not obtained the requisite three-fifths vote required to rezone the parcel, even though the council had voted by four-fifths of its number to approve the zoning change. Id. The organization repeated this challenge, which was again rejected. The organization also filed a baseless action in the Rhode Island Superior Court and ignored procedural requirements of the judicial process. Id. Responding to those efforts, the plaintiff filed an action alleging abuse of process and tortious interference with prospective contractual relations, and the trial court granted summary judgment in favor of the defendants. Id., 1261. The plaintiff appealed. Id.

In concluding that summary judgment was inappropriate, the Rhode Island Supreme Court stated: “A trier of fact might . . . determine that the filing of an action in the [Rhode Island] Superior Court to enjoin the . . . Town Council from meeting was objectively baseless. ... A trier of fact might determine that filing an action in the [Rhode Island] Superior Court after the time (forty days) required by [Gen. Laws] § 45-5-16 was similarly objectively baseless, particularly in view of the fact that no attempt was made to meet the appellate procedural requirements. A trier of fact might determine that the appeal from the planning-board approval of Pound Hill’s plat was also objectively baseless since no substantive ground for such an appeal was presented to the zoning board of review . . . .” Id., 1264. Other state and federal cases finding that a sham was established or supportable reveal analogous behavior. See annot., ‘Sham’ Exception to Application of Noerr-Pen-nington Doctrine, Exempting From Federal Antitrust Laws Joint Efforts to Influence Governmental Action, 71 A.L.R. Fed. 723 (1985).

The level of artifice and frivolousness found in Pound Hill Corp., Landmarks Holding Corp. and other cases does not exist in this case. An examination of the record reveals an attempt, however persistent, by the defendants to use whatever lawful means were at their disposal to challenge the plaintiffs’ activities on substantive grounds. Indeed, the conduct of parties in other cases decided by the Rhode Island Supreme Court in which the sham exception was not applied is analogous to the conduct of the parties in this case.

For instance, in Hometown Properties, Inc. v. Fleming, 680 A.2d 56, 58-59 (R.I. 1996), the plaintiff owners of a landfill brought an action against the defendant, a local resident, because of letters the defendant authored to state and federal officials regarding the plaintiffs’ landfill activities. Notwithstanding the plaintiffs’ demand to do so, the defendant did not retract the substance of the letters. Id., 59. The Rhode Island Supreme Court applied the Noerr-Pennington doctrine and directed the trial court on remand to render a summary judgment in favor of the defendant. Id., 63-64. The court stated that “[i]n her affidavit, [the defendant] presented detailed averments that her statements were based upon various scientific studies and reports. [The plaintiffs] submitted no opposing affidavit or other evidence to challenge [the defendant’s] statements but relied solely on the assertions in [their] pleadings. On the basis of the record before us, it is clear that [the defendant] did not engage in sham activity that was objectively baseless in the sense that no reasonable person exercising the right of speech or petition could realistically expect success in procuring [favorable] government action, result, or outcome.” (Internal quotation marks omitted.) Id., 64.

In Cove Road Development v. Western Cranston Industrial Park Associates, 674 A.2d 1234 (R.I. 1996), the defendants, some of whom were landowners whose properties abutted a proposed development and others who were owners in a nearby industrial park, brought an action against the plaintiff developer, alleging that a zoning amendment adopted in the plaintiffs favor violated the town’s zoning plan and constituted illegal spot zoning. Id., 1235-36. The defendants ultimately lost at trial, appealed, and their case was dismissed by the Rhode Island Supreme Court. Id., 1239.

The plaintiff then brought an action against the defendants, alleging that the zoning appeal constituted an abuse of process and malicious prosecution. Id., 1235. The Rhode Island Supreme Court affirmed the trial court’s granting of a summary judgment in favor of the defendants. Id., 1239. The court applied the Noerr-Pennington doctrine and found that the defendants’ original action was not a sham. Id. The court reasoned that “[a]t trial, [the defendants] presented expert and lay testimony in support of [their] position that the development of high-density residential housing adjacent to an industrial park was inconsistent with the city’s comprehensive plan and could result in nearby residential abutters complaining of industrial activities. The trial justice clearly found this evidence to be of some significance, as he refused to dismiss [the defendants’] case. Moreover, in his eleven-page decision, the trial justice addressed the substance of [the defendants’] appeal at length, but nowhere in the decision did the trial justice indicate in any way that he viewed the appeal as frivolous or lacking merit.” Id.

We now apply the previously stated principles and examine separately two events: First, the various challenges made by the defendants to the plaintiffs’ zoning changes and permit requests; second, the defendants’ attempt to rezone the plaintiffs’ property.

1

As previously stated, in 1987 and 1988 the plaintiffs applied for zone changes to their property. The defendants opposed those changes and pursued available appellate remedies in the Superior Court and Appellate Court, which were -unsuccessful. In 1990, the plaintiffs applied to the Torrington inland wetlands commission for a building permit, which was approved. The defendants again opposed the changes and pursued appellate remedies, which were unsuccessful.

The defendants’ opposition to the plaintiffs’ zoning requests and the defendants’ subsequent appeals were legally available to the defendants and followed applicable judicial procedure. Merely because those attempts failed does not in itself make them baseless acts. A failure of the challenged action is only one factor in determining whether an action is a sham. See Sunergy Communities, Inc. v. Aristek Properties, Ltd., 535 F. Sup. 1327, 1331 (D. Colo. 1982). “[W]hen the defendant has lost the underlying litigation, a court must resist the understandable temptation to engage in post hoc reasoning by concluding that an ultimately unsuccessful action must have been unreasonable or without foundation.” (Internal quotation marks omitted.) Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., supra, 508 U.S. 60 n.5; see also Liberty Lake Investments, Inc. v. Magnuson, supra, 12 F.3d 158-59. Previous decisions by other courts reveal that the defendants’ challenges possessed at least some merit. For example, the defendants’ challenge to the commission’s approval of zoning changes for the plaintiffs’ property that were requested by the plaintiffs was addressed on its merits on appeal to the Superior Court. Consolini v. Planning & Zoning Commission, Superior Court, judicial district of Litchfield, Docket No. 48806 (September 17, 1990). The defendants’ subsequent challenge to the commission’s conclusion that the plaintiffs did not require additional permits to build the plaintiffs’ proposed mall was addressed on its merits in this court. Consolini v. Inland Wetlands Commission, 29 Conn. App. 12,15-16, 612 A.2d 803 (1992).

While not ultimately successful or of overwhelming strength, those zoning challenges were not so objectively baseless that no reasonable litigant could reasonably expect success on the merits, nor did the plaintiffs in Consolini v. Inland Wetlands Commission, supra, 29 Conn. App. 12, ignore procedure or misrepresent facts. We therefore conclude that those actions do not contribute to the conclusion that the defendants in this case have committed a sham.

2

Similarly, when the defendants “took the offense” and, in 1992, applied to change the plaintiffs’ property from restricted commercial and industrial to industrial zoning, their petitioning did not constitute a sham. The defendants presented alternate proposals for an industrial park and a letter citing traffic concerns supporting the zone change. The commission denied the defendants’ application by a four to one vote. Furthermore, when the denial of change was appealed to the Superior Court, the trial court addressed the issue on its merits, did not call the appeal baseless and did not reject the issue of the zone change out of hand. Rizzo v. Planning & Zoning Commission, Superior Court, judicial district of Litchfield, Docket No. 60046 (March 3, 1993).

The plaintiffs make much of the fact that the defendants’ attempt to rezone the plaintiffs’ property is not explicitly authorized by statutory or common law. The mere fact that the defendants’ attempt to rezone the property has not been explicitly authorized, however, does not render it a baseless act. Cf. Smith v. Garretto, 147 F.3d 91, 94 (2d Cir. 1998) (government officials do not lose qualified immunity because of absence of any authority available to them one way or the other). Furthermore, the defendants’ attempt to rezone is not totally devoid of analogous statutory or common law backing. In Ghent v. Zoning Commission, 220 Conn. 584, 588-93, 600 A.2d 1010 (1991), our Supreme Court gave a municipal mayor standing to seek a zone change of property he did not own. See generally Winslow v. Zoning Board, 143 Conn. 381, 386-87, 122 A.2d 789 (1956). Furthermore, General Statutes § 22a-19 authorizes an individual or entity who has no relation to a particular property to intervene regarding that property “in certain proceedings or judicial review thereof to challenge harm to the environmental public trust.” Hyllen-Davey v. Plan & Zoning Commission, 57 Conn. App. 589, 595, 749 A.2d 682, cert. denied, 253 Conn. 926, 754 A.2d 796 (2000); see Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 715, 563 A.2d 1339 (1989).

On the basis of the exhibits, affidavits and admissions in the record, the court properly found that there was no issue of material fact and that, as a matter of law, the sham exception did not apply. Nothing in the record reveals that these requests are baseless nor were they considered baseless by the commission or the courts. The defendants’ attempt to rezone the plaintiffs’ property was undertaken with factual and legal support, as set forth in the court’s memorandum of decision. The defendants’ efforts in thwarting the plaintiffs’ building plans no doubt were aggressive. They were not so baseless, however, as to sink to the level of a sham, as was the situation in Pound Hill Corp., Landmarks Holding Corp. and other cases.

As the court correctly stated in its memorandum of decision: “The undisputed facts, including the promulgation of a master plan, the subsequent downsizing of the plaintiffs’ site and the engineer’s opinion on traffic impact, show that the defendants had a reasonable, good faith belief in the facts supporting the zone change application and the validity of that claim. . . . [B]ased upon these undisputed facts and lack of any other material facts, the court [cannot] find as a matter of law that the defendants’ actions were objectively baseless. . . . Once denied by the zoning commission, the defendants had probable cause to appeal that denial to the Superior Court. Their motives behind these actions are irrelevant to the issue of probable cause.” (Citations omitted.) We conclude that the court properly determined there was no genuine issue of material fact and that the defendants are entitled to judgment as a matter of law. The defendants’ actions are not objectively baseless and not a mere sham. We conclude that the court properly granted the defendants’ motion for summary judgment and rendered judgment in favor of the defendants.

II

The plaintiffs also contend that the court improperly placed the burden on them to show that the defendants had no authority to apply for a zone change. The plaintiffs point to the court’s statement that “the plaintiffs have provided no authority, either statutory or regulatory, to state that the defendants were prohibited from applying for a zone change for property in their neighborhood.” We disagree.

The court stated in its memorandum of decision that “the party seeking summary judgment has the burden of showing the nonexistence of any material fact”; (internal quotation marks omitted), quoting Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995); and noted that the plaintiffs had provided nothing more than the bare assertion that the defendants were prohibited from applying for a zone change. It is well settled that such bare assertions by the nonmovant are not enough to withstand summary judgment. “Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . [the nonmovant] must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court.” (Internal quotation marks omitted.) Id. Thus, the court’s statement on this issue was not improper.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs are A. James Zeller andTorringford Commercial Associates Limited Partnership.

       The defendants are the law firm of Howd, Lavieri and Finch, attorney Maureen E. Donohue and Joseph L. Consolini, Elizabeth J. Consolini, Robert A. Rizzo, Conio C. Lopardo, Marlene R. Lopardo, Robert A. Gioiele, Donna J. Gioiele, Ronald Clifford, Richard S. Gryniuk, Mary Jane Gryniuk, Edward M. Brady, Louise H. Brady, Richard R. Dwan, Georgette T. Dwan, Richard Bascetta, Kathleen Bascetta and Isobel B. Roberts.

       Previous decisions in this case provide the facts we discuss and additional factual background. See Zeller v. Consolini, 235 Conn. 417, 667 A.2d 64 (1995); Zeller v. Consolini, Superior Court, judicial district of Litchfield, Docket No. 60356 (June 26, 1997) (19 Conn. L. Rptr. 677).

       See United Mine Workers v. Pennington, 381 U.S. 657, 85 S. Ct. 1585, 14 L. Ed. 2d 626 (1965), and Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S. Ct. 523, 5 L. Ed. 2d 464 (1961).

       We note that the Noerr-Pennington doctrine is similar to existing law in Connecticut governing the torts of interference with business relations and vexatious litigation. Interference with contractual relations and vexatious litigation, which the plaintiffs alleged, are closely intertwined in this case, as tortious interference with contractual relations is predicated on the facts underlying the vexatious litigation claim. See Blake v. Levy, 191 Conn. 257, 261-66, 464 A.2d 52 (1983). For a vexatious litigation claim to succeed, “it is necessary to prove want of probable cause, malice and a termination of suit in the plaintiffs favor. . . . Probable cause is the knowledge of facts sufficient to justify a reasonable person in the belief that there are reasonable grounds for prosecuting an action. . . . Malice may be inferred from lack of probable cause. . . . The want of probable cause, however, cannot be inferred from the fact that malice was proven. . . . The existence of probable cause is an absolute protection . . . and what facts, and whether particular facts, constitute probable cause is always a question of law.” (Citations omitted; internal quotation marks omitted.) Vandersluis v. Weil, 176 Conn. 353, 356, 407 A.2d 982 (1978); Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn. App. 582, 594, 715 A.2d 807 (1998).

       In concluding that the defendants’ tactics were not baseless for purposes of the Noerr-Pennington doctrine, we do not mean to imply any approval of the ultimate merits of the defendants’ actions.

       Finally, we note that a party’s use of its economic powers in an attempt to stifle individual citizens’ use of valid governmental processes by threat of expensive litigation potentially constitutes a violation of CUTPA, which is expressly modeled on § 5 (a) (1) of the Federal Trade Commission Act, 15 U.S.C. § 45 (a) (1). Larsen Chelsea Realty Co. v. Larsen, 232 Conn. 480, 498, 656 A.2d 1009 (1995). Further, CUTPA directs state courts to be guided by federal interpretations of the federal act in construing the state statute. General Statutes § 42-110b (b). Federal courts interpreting the Federal Trade Commission Act have applied the Noerr-Pennington doctrine. Federal Trade Commission v. Superior Court Trial Lawyers Assn., 493 U.S. 411, 418-19, 110 S. Ct. 768, 107 L. Ed. 2d 851 (1990); Rodgers v. Federal Trade Commission, 492 F.2d 228, 229 (9th Cir.), cert. denied, 419 U.S. 834, 95 S. Ct. 60, 42 L. Ed. 2d 60 (1974); see also Suburban Restoration Co. v. ACMAT Corp., supra, 700 F.2d 101-102 (interpreting CUTPA); J. Sills, Comment, “SLAPPs (Strategic Lawsuits Against Public Participation): How Can the Legal System Eliminate their Appeal?” 25 Conn. L. Rev. 547, 577-78 (1993).

       Because we find that the petitioning was not objectively baseless, we need not consider the second prong of the Noerr-Pennington sham exception, namely, whether the defendants’ actions constituted an attempt to interfere with the plaintiffs through abuse of the petitioning process. “Only if challenged litigation is objectively meritless may a court examine the litigant's subjective motivation.” Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., supra, 508 U.S. 60.


author: ZARELLA, J.

text:
    TERESA KARUTZ v. FEINSTEIN AND HERMAN, P.C., ET AL.
    (AC 19169)
    O’Connell, C. J., and Hennessy and Zarella, Js.

    Argued February 22
    officially released August 29, 2000

      Yinxia Long, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and William J. McCullough, assistant attorney general, for the appellant (defendant second injury fund).

      David A. Kelly, with whom, on the brief, was James J. Moynihan, for the appellees (named defendant et al.).

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

   Opinion

ZARELLA, J.

The defendant second injury fund (fund) appeals from the decision of the workers’ compensation review board (board) affirming an order by the workers’ compensation commissioner (commissioner) that the notice to the fund by the insurer, the defendant Middle-sex Mutual Assurance Company (insurer), of intent to transfer liability to the fund was timely under the requirements of General Statutes § 31-349. The fund claims that the board improperly affirmed the commissioner’s determination because the notice was untimely. We conclude that the insurer failed to notify the fund in a timely manner and therefore could not transfer its liability to the fund.

In his finding and order, the commissioner found the following facts. The plaintiff, Teresa Karutz, worked as an attorney for the defendant law firm of Feinstein & Herman, P.C. On September 27, 1990, the plaintiff injured her back during the course of her employment when a file cabinet drawer that she was opening unexpectedly came out of the cabinet. The plaintiff subsequently experienced stiffness and pain in her lower back. She did not seek medical attention, however, until November 12, 1990, when she saw Peter B. Stovell, an orthopedic surgeon. The plaintiff filed a form 30 C in March, 1991, and submitted an employer’s first report of occupational injury or disease form on July 1, 1991. From the date of the injury until November 25, 1991, the plaintiff lost no time from work as a result of her injury and was paid her regular salary.

Stovell treated the plaintiff on a regular basis from November 12, 1990, through July 29, 1991. Stovell prescribed anti-inflammatory drugs, a home exercise program, physical therapy and diagnostic tests. On the basis of Stovell’s and other examining physician’s reports, the plaintiff was found to be temporarily totally disabled from November 25, 1991, through November 30, 1992. The insurer paid temporary total disability benefits during this period of time. The temporary total disability benefits were terminated and payments ceased on November 30, 1992. The plaintiff asserted a claim for temporary partial disability benefits for the period from November 30, 1992, to July 12, 1994.

Subsequently, the commissioner conducted informal hearings. The insurer and the plaintiff agreed that the plaintiff would be entitled to an award of thirty-six weeks of temporary partial disability benefits covering the period from November 30, 1992, to July 12, 1994. This award by stipulation was approved by the commissioner on August 8, 1995. The plaintiff, according to Stovell’s assessment, reached maximum medical improvement on July 12, 1994, and was rated with a 15 percent permanent partial disability of her back.

On August 2, 1993, the insurer notified the fund of its intention to transfer the liability to the fund pursuant to § 31-349. The insurer perfected notice to the fund on October 12, 1993. Section 31-349 (b) provides that as a condition precedent to an employer’s transfer of liability to the fund for an employee’s permanent disability, the employer must furnish notice of intent to transfer to the custodian of the fund ninety days prior to the expiration of the first 104 weeks of a claimant’s disability. Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 393, 618 A.2d 1340 (1993). The fund contested the transfer, arguing that the insurer’s notice was late because the notice period began to run on September 28, 1990, the date of the injury. The insurer requested a formal hearing on the matter, which was heard on July 29, 1997.

The commissioner found that the notice to the fund was timely and that the insurer is therefore entitled to transfer to the fund responsibility for the payment of benefits after the 104th week of disability, which was reached on October 23,1994. Further, the commissioner found that the insurer was entitled to reimbursement from the fund for all benefits paid to the plaintiff after October 23, 1994.

The fund appealed to the review board from the commissioner’s decision. The fund argued that the commissioner improperly found that the insurer provided timely notice of its intent to transfer liability to the fund because the plaintiffs actual periods of medical impairment established that notice was late. In an opinion dated December 18, 1998, the board affirmed the commissioner’s decision to transfer liability to the fund. This appeal followed.

The fund claims that notice was untimely because the plaintiff was disabled from September 27, 1990, the date of her injury, to November 25, 1991, even though she lost no time from work during that period as a result of the injury and was paid her full salary. The fund also claims that she was disabled for purposes of that statute from December 1, 1992, to October 12, 1993, and maintains that the commissioner’s restrictive definition of “disability” led to the erroneous conclusion that the insurer timely complied with the statutory notice provisions.

The issue of timeliness centers on the meaning of the word “disabled” contained in § 31-349. The terms “disabled” and “disability” are not defined in the workers’ compensation statutes. Recent decisions of our Supreme Court, however, have established the meaning of “disability” for purposes of § 31-349.

In Williams v. Best Cleaners, Inc., 237 Conn. 490, 498, 677 A.2d 1356 (1996), the court stated: “In the context of § 31-349, the term ‘disability’ is susceptible of two meanings—physical impairment and loss of earning capacity. 1C A. Larson, Workmen’s Compensation (1995) § 57.11. As Larson observes, these two ‘ingredients’ generally occur concurrently. There are instances, however, such as the present case, in which they do not.

“‘Permanent disability’ is not defined within Connecticut’s Workers’ Compensation Act. General Statutes § 31-275 et seq. ‘Previous disability,’ however, is defined within § 31-275 (20) as ‘an employee’s preexisting condition caused by the total or partial loss of, or loss of use of, one hand, one arm, one foot or one eye resulting from accidental injury, disease or congenital causes, or other permanent physical impairment.' ... ‘In construing the act . . . this court makes every part operative and harmonious with every other part insofar as is possible.’ . . . Weinberg v. ARA Vending Co., 223 Conn. 336, 341, 612 A.2d 1203 (1992). ‘In addition, the statute must be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation. ’American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987). Thus, the meaning of the term ‘disability’ should not vary simply because it is modified by ‘permanent’ rather than ‘previous.’ Accordingly, we define ‘disability,’ for the purpose of § 31-349 (a), to refer to a claimant’s physical impairment. Moreover, this definition is consistent with our case law. Six v. Thomas O’Connor & Co., 235 Conn. 790, 800-801, 669 A.2d 1214 (1996) (medical records admitted to demonstrate disability); Jacques v. H. O. Penn Machinery Co., 166 Conn. 352, 359, 349 A.2d 847 (1974) (claimant’s heart disease considered ‘preexisting permanent physical impairment’ despite fact that it ‘had neither manifested itself so as to be a hinderance to obtaining employment nor come to the attention of the employer’); Rowe v. Plastic Design, Inc., 37 Conn. App. 131, 135, 655 A.2d 270 (1995) (prior injury not ‘a first injury because it did not result in a permanent physical impairment’).” (Emphasis in original.) Williams v. Best Cleaners, Inc., supra, 237 Conn. 498-99.

Thus, a person can be disabled for the purposes of § 31-349 even though he or she can carry on all the facets of his or her employment. The test is whether a claimant is physically impaired, not whether there exists a de facto inability to earn a wage.

The second principle necessary for the proper disposition of this matter was set forth in Innocent v. St. Joseph’s Medical Center, 243 Conn. 513, 705 A.2d 200 (1998). In Innocent, the fund appealed from the board’s decision that affirmed the transfer of liability to the fund, claiming that under § 31-349 (a) the employer’s notice was untimely. Id., 517. The employer argued that the 104 week period required in § 31-349 (a) did not include a time period during which the claimant had returned to light duty work. Id. The fund contended that all medically documented periods of disability count toward the calculation of timely notice under § 31-349 (a). Id. Thus, the fund argued that the notice was untimely because the claimant’s period of light duty employment should be counted in determining the 104 week period under § 31-349. Id.

Our Supreme Court agreed with the fund and held that “under the recent decisions in Vaillancourt v. New Britain Machine/Litton, supra, 224 Conn. 382, Six v. Thomas O’Connor & Co., [supra, 235 Conn. 790], and Williams v. Best Cleaners, Inc., supra, 237 Conn. 490, the rate of pay received by the claimant and the number of hours worked upon her return to work are not determinative of the time period of her disability under § 31-349 (a). Rather, the determinative factor as to whether the time period is to be included in calculating the 104 week period of disability that triggers the date by which the employer must furnish notice to the fund, is whether the claimant is medically impaired as a result of his or her work-related injury.” Id., 518.

With those two principles in mind, we now review the decision of the board. We recognize that the calculation of the date that notice of intent to transfer liability to the fund is due must be determined by the commissioner on the basis of all of the evidence placed before him. “[T]he power and duty of determining the facts rests on the commissioner, the trier of facts. . . . The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Citation omitted; internal quotation marks omitted.) Six v. Thomas O’Connor & Co., supra, 235 Conn. 798-99.

The commissioner, however, concluded that the plaintiff had provided timely notice on the ground that the disability period did not begin on the date of injury. The commissioner found that “[w]hile the [plaintiff] may have been suffering from persistent pain and stiffness, and [was] treating with Dr. Stovell from November 12, 1990, until November 25, 1991, she was able to perform her regular job duties at her place of employment and was paid her regular salary.” Further, the commissioner found that “the [plaintiff] lost no time from work from her regular job during the period from September 27, 1990, until November 25, 1991, and was paid her regular salary.” Therefore, the commissioner concluded that “the notice to the second injury fund was timely filed under the provisions of Section 31-349 . . . .” The commissioner, therefore, based his finding of disability on the plaintiffs ability to perform her regular job duties rather than on the date of medical impairment. We conclude that the commissioner’s finding, i.e., that timely notice was given because the plaintiff was not disabled while she continued to work at full pay, was an incorrect application of the law.

The decision of the workers’ compensation review board is reversed and the case is remanded to the board with direction to reverse the decision of the commissioner and to order further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       General Statutes § 31-349 provides in relevant part: “(a) The fact that an employee has suffered a previous disability, shall not preclude him from compensation for a second injury, nor preclude compensation for death resulting from the second injury. If an employee having a previous disability incurs a second disability from a second injury resulting in a permanent disability caused by both the previous disability and the second iry ury which is materially and substantially greater than the disability that would have resulted from the second injury alone, he shall receive compensation for (1) the entire amount of disability, including total disability, less any compensation payable or paid with respect to the previous disability, and (2) necessary medical care, as provided in this chapter, notwithstanding the fact that part of the disability was due to a previous disability. For purposes of this subsection, ‘compensation payable or paid with respect to the previous disability’ includes compensation payable or paid pursuant to the provisions of this chapter, as well as any other compensation payable or paid in connection with the previous disability, regardless of the source of such compensation.
      “(b) As a condition precedent to the liability of the Second Injury Fund, the employer or its insurer shall: (1) Notify the custodian of the fund by certified mail no later than three calendar years after the date of injury or no later than ninety days after completion of payments for the first one hundred and four weeks of disability, whichever is earlier, of its intent to transfer liability for the claim to the Second Injury Fund . . . .”

       This period represents eighty-four and one-half weeks. The settlement agreement did not designate which part of the eighty-four and one-half weeks W'as covered by the agreement.


author: FREEDMAN, J.

text:
    ALISTAIR GEMMELL ET AL. v. DENNIS LEE ET AL.
    (AC 19616)
    Landau, Spear and Freedman, Js.

      Submitted on briefs April 24
    officially released August 29, 2000

      David A. Leff and William F. Dow III filed a brief for the appellants (named defendant et al.).

      Michele R. Celentano and Morion J. Dimenstein filed a brief for the appellees (plaintiffs).
   Opinion

FREEDMAN, J.

The defendants appeal from the judgment of the trial court quieting title in the plaintiffs to a right-of-way over property known as Glen Road in Orange and enjoining the defendants from interfering with the plaintiffs’ right-of-way. We affirm the judgment of the trial court.

The plaintiffs brought this action to quiet title to an easement over a proposed road or private right-of-way known as Glen Road. The plaintiffs claimed that the defendants were interfering with their right to make use of the proposed road and encroaching on then-property. The trial court found for the plaintiffs, reciting the following findings of fact.

“All of the properties owned by the parties descend from a common owner, one Mary Gracy. The various deeds from Mary Gracy to the parties herein form the basis for this dispute.

“The deed from Mary Gracy to the plaintiffs’ predecessor in title contains a description of the property conveyed setting forth its various boundaries, some of which are described as bordering on a certain ‘right of way.’ . . . There is no specific reference in the deed to any right of passage or use over said right-of-way. The deed does, however, contain a referral to a map, alleged to be of record, for a further description of the property. The reference reads as follows: ‘The above parcel is fully described and reference is here had to a map entitled “Gracy, Orange, Conn., scale 1 [inch] - 40 [feet], July, 1929, Wynne & Hahn, Civil Engineers and Surveyors” on file in the Orange Town Clerk’s Office.’ All of the deeds but one in the plaintiffs’ chain of title contain this reference to the map of July, 1929.

“Subsequently, the deeds to the defendants or then-predecessors in title refer not only to the map but also refer to the right through over and upon said right of way. An example of such grant is found in the deed to the defendant Joan Somers: ‘[T]ogether with a right of way for all purposes whatsoever, in common with Mary Gracy, her heirs and assigns, and in common with all others to whom a similar right may have been heretofore granted, or may hereafter be granted in, through, over and upon that portion of said right of way 25 feet in width, as herein mentioned, and as the same is shown on a Map entitled “Gracy, Orange, Conn., Scale 1 inch equals 40 feet, July, 1929, Wynne & Hahn, Civil Engineers,” on file in the Orange Town Clerk’s Office. . . .’

“Over the years, the ‘Proposed road’ or ‘right-of-way’ has become known as Glen Road, and several of the deeds refer to the right in common with others to the use of Glen Road.”

The court framed the issue as “whether a reference, in a deed, to a map alleged to be on file in the Orange Town Clerk’s Office, by itself and without any specific grant conveys an interest in a proposed road depicted thereon, said road being bounded on the property being conveyed.” The court answered that question in the affirmative and concluded that the plaintiffs have an easement over Glen Road that gives them access to the rear of their property.

“[T]he law is well settled that where an owner of land causes a map to be made of it upon which are delineated separate lots and streets and highways by which access may be had to them, and then sells the lots, referring in his conveyances to the map, the lot owners acquire the right to have the streets and highways thereafter kept open for use in connection with their lands.” Whitton v. Clark, 112 Conn. 28, 32, 151 A. 305 (1930). “If a grantor promulgates a general plan for the development of a tract and the plan designates streets by which the lots on the plan may be reached, the lot owners have an enforceable right to use the street to reach their lots. Id., 35. The Whitton court states, ‘ [h] ere the test must be the intention of the owner in creating the restrictions upon any lot to make the benefit of them available not to himself but to the owners of the other lots in the tract.’ Id., 36.” Perkins v. Fasig, 57 Conn. App. 71, 77, 747 A.2d 54, cert. denied, 253 Conn. 925, 754 A.2d 797 (2000).

Because the plaintiffs were not given an express easement over Glen Road, we must consider whether they have an easement by implication. “There are two principal factors to be examined in determining whether an easement by implication has arisen: (1) the intention of the parties; and (2) whether the easement is reasonably necessary for the use and normal enjoyment of the dominant estate.” (Internal quotation marks omitted.) Id., 78. We determine whether the grantor intended to establish an easement “by an examination of the deeds, maps and recorded instruments introduced as evidence. Intent as expressed in deeds and other recorded documents is a matter of law.” Id., 76. “We must also examine the facts found by the court as relevant to the establishment of the particular dimensions of the easement.” Mandes v. Godiksen, 57 Conn. App. 79, 83, 747 A.2d 47, cert. denied, 253 Conn. 915, 754 A.2d 164 (2000); see also Perkins v. Fasig, supra, 57 Conn. App. 78-79 (“[although the intent of a grantor to create an easement as expressed in deeds, maps and recorded instruments is a question of law, those documents must be considered in light of the surrounding circumstances to determine the nature and extent of the easement”).

As previously stated, the deed from Mary Gracy to the plaintiffs’ predecessor in title contains a reference to the map for a further description of the property. An examination of the map reveals the “proposed road” over which the plaintiffs claim an easement. As the court noted, “the road terminates at a point well north of plaintiffs’ southerly boundary, a point well within the property owned by the plaintiffs. In fact, this extension continues well past the right-of-way exercised by the defendants. For a substantial distance, the plaintiffs own on both sides of the Proposed Road. Circumstances existing at the time of the transfer of title would indicate some use of the Road by the plaintiffs was anticipated by the grantor.” We conclude, on the basis of our review of the deed, map and circumstances surrounding the conveyance to the plaintiffs’ predecessor in interest, that it was the intent of the grantor to create an easement over Glen Road.

We next examine the second factor in determining whether an easement by implication has arisen. “[I]n so far as necessity is significant [for an easement by implication] it is sufficient if the easement is highly convenient and beneficial for the enjoyment” of the dominant estate. (Internal quotation marks omitted.) D’Amato v. Weiss, 141 Conn. 713, 717, 109 A.2d 586 (1954); Schultz v. Barker, 15 Conn. App. 696, 701, 546 A.2d 324 (1988). Regarding the benefit to the plaintiffs, the court heard evidence and noted that the rear portion of the plaintiffs’ property had a sharp slope to it, and that the plaintiffs had made use of the right-of-way for access to the rear of their property for the purpose of farming the rear portion of the property since approximately 1935. In addition, the plaintiffs’ son testified that he gained access to the rear of the plaintiffs’ property for gardening by using a pickup truck over Glen Road from approximately 1975 to 1990. We conclude that the easement is reasonably necessary for the use and normal enjoyment of the plaintiffs’ property and that the trial court properly concluded that the plaintiffs have an easement over the property known as Glen Road.

We also agree with the court’s conclusion that the defendants failed to prove their special defenses of adverse possession and the statute of limitations.

With regard to their special defense of adverse possession, the defendants claimed that because they had used and enjoyed Glen Road to the exclusion of all others for more than fifteen years, they acquired sole and exclusive rights to Glen Road. The defendants argued that through adverse possession they had acquired legal title to Glen Road, including the claimed areas of encroachment. “The essential elements of adverse possession are that the owner shall be ousted from possession and kept out uninterruptedly for fifteen years under a claim of right by an open, visible and exclusive possession of the claimant without license or consent of the owner. . . . Adverse possession must be proven by the claimant... by clear and convincing evidence.” (Citations omitted; internal quotation marks omitted.) Kramer v. Petisi, 53 Conn. App. 62, 67, 728 A.2d 1097, cert. denied, 249 Conn. 919, 733 A.2d 229 (1999). The court found that the defendants had failed to satisfy their burden of proof on this issue, noting initially that all of the defendants have an explicit easement in Glen Road and, therefore, their use was not without the license or consent of the owner. The court further found that the defendants had failed to prove that the plaintiffs had been ousted of any easement that they had claimed in Glen Road. Specifically, the court found that the plaintiffs had used the right-of-way for farming as far back as 1935 and, further, that the plaintiffs had used the property unimpaired until 1991 or 1992, when access to the property was blocked by cars.

The defendants also claimed that because the plaintiffs and their predecessors had failed to make entry onto Glen Road within fifteen years of the defendants’ possession of Glen Road and to institute an action within one year of their entry, the plaintiffs’ claim that they had the right to use the road was barred by the statute of limitations contained in General Statutes § 52-575. That statute gives a person ousted from possession fifteen years from the date of ouster to enter the land and give notice of his intention to prevent the acquisition of the land by the other. The statute sets one year from the date of notice for the commencement of an action to quiet title. The court found that the plaintiffs had not been ousted and that their use of the road had been unimpaired until 1991 or 1992. This action was filed in 1992. Under these circumstances, it is clear that the court properly found that the plaintiffs’ action to quiet title was not barred by the statute of limitations in § 52-575.

The defendants’ final claim is that the plaintiffs failed to prove that their use of Glen Road was open, visible and uninterrupted for fifteen years. As to this claim, we simply note that the court did not conclude that the plaintiffs had obtained a prescriptive easement or an easement by adverse possession. The plaintiffs, therefore, had no duty to prove that their use of Glen Road was open, visible and uninterrupted for fifteen years. This claim is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       This action was brought against a number of property owners who have an interest in the subject property. Only the defendants Thomas O’Donnell, Susan O'Donnell, Dennis Lee, Valerie Lee, Robert, Lehet and Roberta Lehet have appealed. We refer in this opinion to those defendants as the defendants.

       The plaintiffs are Alistair Gemmell and Dorothy Gemmell.

       The plaintiffs alleged in their complaint that the defendants had blocked Glen Road by the parking and storage of vehicles and other debris, thereby preventing the plaintiffs from using the right-of-way to gain access to their land, and further that the defendants had encroached on the plaintiffs’ land by this parking and storage. The plaintiffs sought an injunction restraining the defendants from interfering with their right-of-way and from encroaching on their land.

       Joan Somers was a defendant in the trial court, but she is not involved in the present appeal.

       Although the map is dated July, 1929, it was recorded in the town clerk’s office in Orange on September 10, 1938.