author: BISHOP, J.

text:
    DAVID WELLES ET AL. v. CHESTER LICHAJ ET AL.
    (AC 33071)
    DiPentima, C. X, and Bear and Bishop, Js.

      Argued February 6
    officially released June 26, 2012

      Zbigniew S. Rozbicki, for the appellants (defendants).

      Ruth C. Nadeau, with whom was J. Michael Scony-ers, for the appellees (plaintiffs).
   Opinion

BISHOP, J.

The defendants, Chester Lichaj and Nicole Lichaj, appeal from the judgment of the trial court granting an injunction in favor of the plaintiffs, David Welles and Lori Welles, enjoining Chester Lichaj from maintaining a right-of-way over the plaintiffs’ property. The defendants claim that the court improperly (1) denied them their right to a jury trial, (2) granted injunctive relief, (3) construed the language of the defendants’ deed, (4) defined the rights and responsibilities of the parties in regard to the property in question and (5) issued an order that affected the rights of Nicole Lichaj. We reverse the judgment of the trial court.

The following undisputed facts and procedural history are relevant to our consideration of the issues on appeal. The plaintiffs own and reside at 37 Bailyhack Road in West Cornwall. The defendants own and reside at 39 Bailyhack Road. Pursuant to a deed, the defendants have a right-of-way over the plaintiffs’ land for the purpose of gaining access to their property from Bailyhack Road. The fifty foot wide right-of-way extends from Bailyhack Road, over a portion of the plaintiffs’ land, to the defendants’ residence, a distance of approximately 1400 feet. The right-of-way provides the only means of access for the parties from Ballyhack Road, a public highway, to their residences.

In 2004, Chester Lichaj began using his tractor to remove snow from the right-of-way. The plaintiffs made multiple requests to both defendants that he stop plowing the right-of-way because Lori Welles’ father historically had plowed it for them and if an emergency arose, they preferred to call a professional to attend to the snowplowing. Nevertheless, Chester Lichaj periodically plowed the right-of-way with his own tractor even though Lori Welles’ father also continued to plow the right-of-way until his truck failed during the 2005-2006 winter. Thereafter, the plaintiffs hired David Hurlburt to plow the driveway. Chester Lichaj, however, continued to plow the driveway as well during the same winter. This pattern continued, with the plaintiffs hiring Hurlburt but Chester Lichaj still plowing the driveway with his tractor, despite requests from the plaintiffs that he not do so.

Thereafter, in March, 2009, the plaintiffs initiated this action seeking a permanent injunction prohibiting Chester Lichaj from plowing the right-of-way. The defendants filed a counterclaim sounding in tort alleging that the plaintiffs intentionally and maliciously interfered with their use of the right-of-way and the quiet enjoyment of their land. The defendants also claimed intentional and negligent infliction of emotional distress. More specifically, they alleged that on multiple occasions while Chester Lichaj plowed snow off the right-of-way he was accosted verbally by David Welles in an aggressive and abusive manner.

Although a jury was selected for this case, on October 28, 2010, the court directed the parties to identify those issues that were properly before the court, to identify those issues that were to be submitted to the jury and to provide authority in support of the parties’ respective positions regarding whether the matter was properly before a jury. On November 5, 2010, the court ruled that the plaintiffs had sufficiently alleged irreparable harm and a lack of remedy at law, and, therefore, the plaintiffs’ cause of action sounded in equity. In addition, the court concluded that if the plaintiffs were to prevail on their claim then the defendants’ counterclaim necessarily would fail. The court’s written order directed that “this matter be tried to the court first, and the jury that has been selected will be discharged.” Through this order, the court limited the trial to the equitable issues in the plaintiffs’ amended complaint and their claim for injunctive relief. The defendants were not given the opportunity to present their counterclaim for damages to the jury.

On December 9, 2010, the court rendered judgment for the plaintiffs against Chester Lichaj, granting the plaintiffs a permanent injunction, enjoining him “from performing maintenance activities, as those activities are defined in the deed, on any part of the right-of-way that is the subject of this action. All maintenance activities will be carried out by third parties who are in the business of performing such maintenance activities . . . [except upon the occurrence of] a medical emergency.” This appeal followed. Additional facts will be set forth as necessary.

I

The defendants’ first claim is that the court improperly ruled that the plaintiffs’ claim was equitable in nature, and incorrectly removed the entire action from the jury for a court trial even though the defendants’ counterclaim sought money damages. We conclude that the plaintiffs’ claim was in fact equitable, and, therefore it was properly removed from the jury list. We conclude, as well, that the defendants were entitled to a jury trial on their counterclaim for damages notwithstanding the nature of the plaintiffs’ complaint. In particular, it is apparent from a reading of the counterclaim that its vitality was not dependent on the defendants’ success against the plaintiffs’ equitable claim. Consequently, regardless of whether the plaintiffs were entitled to injunctive relief, the defendants independently were entitled to have a jury decide the issues presented in their counterclaim through which they sought legal relief.

The right to a jury trial in Connecticut originates from article first, § 19, of the constitution of Connecticut, as amended by article four of the amendments, which provides in relevant part that “[t]he right of trial by jury shall remain inviolate . . . .” This particular provision of the constitution has been construed by Connecticut courts to mean that if there was a right to a trial by jury at the time of the adoption of the provision, then that right remains intact. See L & R Realty v. Connecticut National Bank, 246 Conn. 1, 9, 715 A.2d 748 (1998). The fundamental right to a jury trial, however, is subject to certain limitations. Id. One limitation is that the right does not extend to equitable claims. Franchi v. Farmholme, Inc., 191 Conn. 201, 209, 464 A.2d 35 (1983). “Our case law has spoken to the resolution of factual issues in the context of actions essentially equitable or essentially cognizable at law . . . [and we have stated that] [w]here incidental issues of fact are presented in an action essentially equitable, the court may determine them without a jury in the exercise of its equitable powers.” (Citation omitted; internal quotation marks omitted.) Id., 210. “[T]he true test of a right to a jury trial is whether the cause of action stated (rather than merely the relief claimed) is essentially legal as distinguished from essentially equitable.” (Internal quotation marks omitted.) Id., 211. Furthermore, it is well established that an injunction is an equitable form of relief and that the proper remedy to stop interference with an owner’s use and enjoyment of an easement is an injunction. See Peckheiser v. Tarone, 186 Conn. 53, 60-61, 438 A.2d 1192 (1982). Because the plaintiffs’ claim was equitable in nature, the court properly ruled that it should be tried to the court.

As to the defendants’ counterclaim, however, its resolution was not dependent on the outcome of the plaintiffs’ equitable claim. The defendants’ counterclaim was founded in tort and did not rely, for its vitality, on the defendants’ success in defending against the plaintiffs’ equitable claim. Even if an injunction was deemed a proper remedy in this situation, the issuance of a proper injunction would not be responsive to the defendants’ counterclaim as it related to the alleged behavior of the plaintiffs in the manner in which they allegedly sought to enforce their rights regarding use of the right-of-way. In short, regardless of whether the defendants did in fact interfere with the plaintiffs’ use of the right-of-way, the law does not contemplate that the plaintiffs would be entitled to protect their property rights by abusive behavior. Because the defendants were entitled to a jury trial on their counterclaim, the court should not have removed the defendants’ counterclaim from the jury and should not have determined that the viability of the defendants’ counterclaim would be determined by its ruling on the plaintiffs’ request for injunctive relief.

II

The defendants’ second claim is that the court improperly granted injunctive relief. More specifically, the defendants argue that the court abused its discretion in granting injunctive relief because the plaintiffs provided no evidence that the defendants’ conduct caused them irreparable harm. We agree.

The following standard of review applies to the review of a trial court’s ruling on an injunction. “The issuance of an injunction and the scope and quantum of injunctive relief rests in the sound discretion of the trier. ... A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law. ... A prayer for injunc-tive relief is addressed to the sound discretion of the court and the court’s ruling can be reviewed only for the purpose of determining whether the decision was based on an erroneous statement of law or an abuse of discretion.” (Citations omitted; internal quotation marks omitted.) New Breed Logistics, Inc. v. CT INDY NH TT, LLC, 129 Conn. App. 563, 570-71, 19 A.3d 1275 (2011).

Furthermore, “a plaintiff [ordinarily] is entitled to an injunction only in the event that he can show that the threatened conduct will cause him irreparable damage.” Wambeck v. Lovetri, 141 Conn. 558, 564, 107 A.2d 395 (1954). “[T]he owner of [an] easement is entitled to [injunctive] relief only if he can show that he will be disturbed or obstructed in the exercise of his right to use it.” Id. “[W]hether damages are to be viewed by a court of equity as irreparable or not depends more upon the nature of the right which is injuriously affected than upon the pecuniary loss suffered.” (Internal quotation marks omitted.) Cummings v. Tripp, 204 Conn. 67, 90, 527 A.2d 230 (1987). In addition, our Supreme Court has stated that “an injunction may not issue unless to prevent substantial and irreparable injury to a complainant. ... If the injury is not substantial, equity will not interfere.” (Citations omitted.) Herbert v. Smyth, 155 Conn. 78, 85, 230 A.2d 235 (1967).

Applying the relevant law to the case at hand, we agree with the defendants that the plaintiffs did not present evidence of irreparable harm entitling them to injunctive relief. The plaintiffs alleged that the defendants interfered with their use of the right-of-way by Chester Lichaj’s use of a tractor to plow snow from the right-of-way. The plaintiffs, however, did not demonstrate that the defendants’ conduct caused them irreparable harm or injury, let alone substantial irreparable harm. Although Lori Welles testified that she believed that Chester Lichaj’s plowing caused damage to the right-of-way, the plaintiffs offered minimal evidence to support such a claim. More importantly, the court made no finding that Chester Lichaj’s conduct caused any damage to the right-of-way. In fact, in its memorandum of decision, the trial court concluded: “The court does not find that the evidence supports the plaintiffs’ claim that . . . Chester Lichaj has caused physical damage to the right-of-way.” Indeed, Hurlburt, the private party hired by the plaintiffs to plow the right-of-way, testified that the snowplowing of Chester Lichaj likely caused less damage to the right-of-way than that caused by Hurlburt’s own snowplowing.

Furthermore, there is scant evidence in support of the plaintiffs’ claim that the defendants impermissibly interfered with their use of their property. The court’s only finding in regard to this claim is that Chester Lichaj told the plaintiffs not to use the right-of-way while he was removing snow from it. Although the court concluded that Chester Lichaj’s snowplowing took more time to carry out than a professional would take, it made no finding as to whether the time consumed by his snowplowing constituted an unreasonable interference with the plaintiffs’ use of the right-of-way. Significantly, the court made no finding that the defendants obstructed or interfered with the plaintiffs’ right of travel on this shared right-of-way in a manner that would justify the use of the court’s equitable powers to grant an injunction. See Kuras v. Kope, 205 Conn. 332, 342, 533 A.2d 1202 (1987) (“[t]he right of an owner of an easement and the right of the owner of the land are not absolute, but are so limited, each by the other, that there may be a reasonable enjoyment of both” [internal quotation marks omitted]). Although it is true that, as a general principle, the loss of enjoyment or use of land is a right whose diminution constitutes serious harm because it cannot adequately be compensated in damages nor be measured by any pecuniary standards, here, the only loss of enjoyment or use found by the court was an unspecified period of time in which the plaintiffs could not utilize the right-of-way while it was being plowed by Chester Lichaj, as opposed to a professional who might take less time to accomplish the same task. The mere fact that when Chester Lichaj plowed snow from the right-of-way the plaintiffs may have been deterred from using it for an unspecified period of time somewhat longer than a third party might take to plow the same area does not justify the intrusion of the state with a court order constricting the defendants’ use of the right-of-way. Accordingly, the court abused its discretion in granting the injunction.

Ill

The defendants’ next claim that the court improperly fashioned orders on the basis of a misinterpretation of the language of the deed creating the right-of-way. More specifically, the defendants contend that the court incorrectly framed orders regarding the parties’ respective use of the right-of-way that are in conflict with the deed’s clear and unambiguous language. We agree.

As part of its injunctive relief, the court made the following orders regarding the defendants’ use of the right-of-way: “Chester Lichaj is permanently enjoined from performing maintenance activities, as those activities are defined in the deed, on any part of the right-of-way that is the subject of this action. All maintenance activities will be earned out by third parties who are in the business of performing such maintenance activities. ... If the plaintiffs and defendants cannot agree that maintenance is necessary, or if they cannot agree upon the appropriate person or entity to carry out all necessary maintenance, they are ordered to engage the services of a professional arbitrator who will determine whether maintenance is required and who will carry out the needed maintenance.”

In determining the character and extent of an easement created by a deed the court must look to the language of the deed. “The construction of a deed in order to ascertain the intent expressed in the deed presents a question of law and requires consideration of all its relevant provisions in the light of the surrounding circumstances. . . . On appeal the scope of review of such a question is plenary and does not require the customary deference to the trial court’s factual inferences.” (Internal quotation marks omitted.) Branch v. Occhionero, 239 Conn. 199, 205, 681 A.2d 306 (1996). “The meaning and effect of the [language in the deed] are to be determined, not by the actual intent of the parties, but by the intent expressed in the deed, considering all its relevant provisions and reading it in the light of the surrounding circumstances .... The primary rule of interpretation ... is to gather the intention of the parties from their words, by reading, not simply a single clause of the agreement but the entire context, and, where the meaning is doubtful, by considering such surrounding circumstances as they are presumed to have considered when their minds met.” (Internal quotation marks omitted.) Bird Peak Road Assn., Inc. v. Bird Peak Corp., 62 Conn. App. 551, 557, 771 A.2d 260, cert. denied, 256 Conn. 917, 773 A.2d 943 (2001).

Furthermore, if a conveyance is silent as to the duty to maintain an easement, the general rule is that the duty falls on the owner of the easement, referred to as the owner of the dominant estate. “The duty of maintaining an easement so that it can perform its intended function rests on the owner of the easement absent any contrary agreement.” Powers v. Grenier Construction, Inc., 10 Conn. App. 556, 560, 524 A.2d 667 (1987). When the terms of the deed or conveyance do provide an agreement as to maintenance, then the relevant language of the deed governs the maintenance of that easement.

Here, the deed provided clear language as to the roles of each party in maintaining the right-of-way. The deed delineated specific activities that constituted maintenance and stated that the parties would share equally the costs associated with those activities. Importantly, the deed makes no reference as to how those activities are to be carried out. See footnote 3 of this opinion. The court, solely on the basis of the cost sharing language of the deed, expanded the clear import of that language to require not only that a third party conduct all plowing activities, but also to prohibit the defendants from plowing the right-of-way. The court’s orders, however, represent not an interpretation of the deed’s clear language, but the imposition of rights and limitations not found in the deed’s language. As such, the court improperly incorporated a restrictive covenant into the deed unsupported by its plain language. The language in the deed regarding the cost sharing of maintenance does not provide a basis for the court to have established restrictions limiting the defendants’ manner of maintenance where no such limitation reasonably can be implied from the deed’s language. See Hooker v. Alexander, 129 Conn. 433, 436, 29 A.2d 308 (1942) (“restrictive covenants, being in derogation of the common-law right to use land for all lawful purposes which go with title and possession, are not to be extended by implication”). Accordingly, the court improperly interpreted the language of the deed and augmented its clear language with restrictions of the defendants’ use of the right-of-way not hitherto present in the deed and not reserved expressly to the plaintiffs.

The judgment is reversed and the case is remanded with direction to vacate the injunction and for further proceedings on the defendants’ counterclaim consistent with this opinion.

In this opinion the other judges concurred.

       Because we find in favor of the defendants as to the first, second and third claims on appeal, we need not reach the merits of the fourth and fifth claims.

       The defendants jointly purchased the property located at 39 Bailyhack Road in 2003.

       The right-of-way was created as a result of an approved subdivision of a large tract of land into two lots; lot 1 is owned by the plaintiffs and lot 2 is owned by the defendants. Schedule A in the deed conveying the property to the defendants contains the language creating the easement over the driveway, the same language that appeared in the deed to their predecessors in title. The deed provides in relevant part: “All parties agree that the right of way and its continuation are to be maintained in their present condition, which may require periodic grading, re-graveling, cleaning or repairs of culverts, and snow plowing .... Responsibility for payment for said maintenance shall be shared equally by the owners of Lot 1 and Lot 2 .... If the right of way is damaged by either party . . . then the party or parties responsible for the damage shall bear the cost of restoring the right of way to its present condition.”

       That is not to say that the court should be prevented, as a matter of trial management, from ordering the sequence of the trials and giving a priority in time to the plaintiffs’ complaint. Trial management, however, is not a vehicle for the dispensing of substantive rights where, as in this case, the defendants’ entitlement to a jury trial on the legal claims asserted in their counterclaim is not dependent on the outcome of the court trial on the plaintiffs’ equitable claim.

       The deed provides in relevant part: “All parties agree that the right of way and its continuation are to be maintained in their present condition, which may require periodic grading, re-graveling, cleaning or repairs of culverts, and snow plowing .... Responsibility for payment for said maintenance shall be shared equally by the owners of Lot 1 and Lot 2 ... .”

       In its memorandum of decision, the court stated: “Snowplowing is one of the road maintenance activities that is explicitly included in the definition of ‘maintenance.’ The sentence that follows the definition is equally clear: responsibility for ‘payment’ of ‘said maintenance’ is to be shared by the lot owners. The phrase ‘said maintenance’ can only refer to the list of activities that are set forth in the preceding definition of ‘maintenance.’ The sentence otherwise addresses only one topic: payment. It is readily apparent that the drafters intended that maintenance would be carried out by third parties that would expect to be paid for their efforts.”


source: Caselaw Access Project

author: DiPENTIMA, C. J.

license: Public Domain

text:
    ESTATE OF DONNA BOCHICCHIO v. HONORABLE BARBARA QUINN ET AL.
    (AC 32895)
    DiPentima, C. J., and Beach and Bishop, Js.

      Argued November 29, 2011
    officially released June 26, 2012

      John R. Logan, for the appellant (plaintiff).

      Philip Miller, assistant attorney general, with whom was Thomas Davis, assistant attorney general, and, on the brief, George Jepsen, attorney general, for the appel-lees (defendants).
   Opinion

DiPENTIMA, C. J.

The plaintiff, the estate of Donna Bochicchio through the administrator, Karl J. Seitz, appeals from the judgment of the trial court dismissing its complaint on the grounds of sovereign immunity. Specifically, the plaintiff argues that the doctrine of sovereign immunity does not apply in this case, and, therefore, the court improperly dismissed its bill of discovery. We conclude that the plaintiff failed to exhaust its administrative remedies, and, therefore, the trial court lacked subject matter jurisdiction to consider the merits of the plaintiffs action. Accordingly, we affirm the judgment of the trial court.

Given the procedural posture of this case, we take the facts from the allegations contained in the plaintiffs complaint. See Leseberg v. O'Grady, 115 Conn. App. 18, 21, 971 A.2d 86 (“[i]n reviewing the trial court’s decision to grant a motion to dismiss, we take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader” [internal quotation marks omitted]), cert. denied, 293 Conn. 913, 978 A.2d 1110 (2009). On June 14, 2010, the plaintiff commenced this action for a bill of discovery against the defendants, the Honorable Barbara Quinn and the Honorable Julia Aurigemma, both of whom are judges of the Superior Court. The genesis of this action arose out of a marital dissolution proceeding between the plaintiffs decedent, Donna Bochicchio, and Michael Bochicchio. Michael Bochicchio commenced the dissolution of marriage action in April, 2003, in the judicial district of Litchfield, and the “contentious and hotly disputed dissolution litigation was transferred to the Regional Family Trial Docket” in the judicial district of Middlesex at Middletown. In 2005, the case proceeded to trial before Judge Quinn, and, at that time, Judge Aurigemma served as the administrative judge in Mid-dletown.

During the course of the Middletown proceedings, Michael Bochicchio attempted to enter the courthouse with various prohibited items, including, but not limited to, a pocket knife, a handcuff key, a tape recorder and a handgun. On June 15, 2005, Michael Bochicchio, after lying in wait in the public parking lot for the Middletown courthouse, shot and killed the plaintiffs decedent. He also shot and severely wounded the decedent’s attorney, Julie Porzio. Michael Bochicchio then fatally shot himself.

Pursuant to General Statutes § 4-147, the plaintiff filed a claim with the claims commissioner (commissioner) seeking permission to sue the state of Connecticut, pursuant to General Statutes § 4-160 (a). In that action, the plaintiff claimed that individual and collective failures by judicial branch employees constituted a substantial factor in the death of its decedent. The plaintiff sought to depose the defendants in order to ascertain their knowledge of the management of the marshals at the Middletown courthouse, the security measures or lack thereof, the security breaches and attempted crimes committed by Michael Bochicchio and “their personal recollections as to their observations of . . . Michael Bochicchio” during the trial proceedings.

The plaintiff noted that it would refrain from asking questions regarding the thought processes of the defendants with respect to their judicial decisions and would limit questions to factual recollections and matters pertaining to the administrative function of courthouse security. The state objected and requested that the commissioner rule on whether the deposition of the defendants would proceed. Following a discussion conducted off the record, the commissioner denied the deposition request; instead, he authorized the plaintiff to pose written interrogatories to the defendants. After detailing these allegations in its complaint seeking a bill of discovery, the plaintiff further claimed that written interrogatories were an inadequate remedy and that depositions of the defendants were material and necessary to a proper determination of its claims against the state.

Pursuant to Practice Book §§ 10-30 and 10-31, the defendants filed a motion to dismiss the complaint requesting a bill of discovery, arguing that it was barred by the doctrine of sovereign immunity. On October 28, 2010, the court issued a memorandum of decision granting the motion to dismiss. The court concluded that sovereign immunity applied because the state would be affected in three ways if the depositions of the defendants were permitted. First, the court reasoned that information obtained in the depositions potentially may be used against the state in a future action. Second, the court stated that the time needed by the defendants to prepare for and to attend the depositions would “diminish their availability to fulfill their judicial duties.” Third, the court stated that the plaintiffs bill of discovery “undermines the legislatively established method for determining claims against the state.” The court stated that the plaintiff, apparently dissatisfied with the decision of the commissioner, had attempted to appeal that decision in the Superior Court and that this tactic is not permitted under our jurisprudence. See Circle Lanes of Fairfield, Inc. v. Fay, 195 Conn. 534, 542-43, 489 A.2d 363 (1985). For these reasons, the court concluded that sovereign immunity applied and, accordingly, granted the defendants’ motion to dismiss. This appeal followed.

On appeal, the plaintiff claims that the doctrine of sovereign immunity does not apply to a bill of discovery because the only relief sought is testimony, and, therefore, the state is not affected. Specifically, the plaintiff, as it did before the trial court, relies on the statement in Gold v. Rowland, 296 Conn. 186, 215, 994 A.2d 106 (2010), that “where the state will be unaffected by [a judgment in favor of the plaintiff], its consent to suit and waiver of sovereign immunity seems unnecessary.” (Emphasis in original; internal quotation marks omitted.) The plaintiff then argues that the court erroneously relied on the three grounds set forth in the memorandum of decision.

The defendants counter that the court correctly determined that the state would be affected by the plaintiffs bill of discovery, and, therefore, the doctrine of sovereign immunity applies to the bill of discovery. They further contend that the plaintiff failed to exhaust its administrative remedies, and, therefore, the trial court lacked jurisdiction to consider the merits of the plaintiffs bill of discoveiy. We agree with the defendants’ exhaustion argument and affirm the judgment of the trial court on this alternate basis.

We begin by setting forth certain legal principles that inform and guide our analysis. “It is a well-established rule of the common law that a state cannot be sued without its consent. ... A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends. . . . The practical and logical basis of the doctrine is today recognized to rest on this principle and on the hazard that the subjection of the state and federal governments to private litigation might constitute a serious interference with the performance of their functions and with their control over their respective instrumentalities, funds, and property. . . . We have held that a plaintiff seeking to circumvent the doctrine of sovereign immunity must show that: (1) the legislature, either expressly or by force of a necessary implication, statutorily waived the state’s sovereign immunity . . . or (2) in an action for declaratory or injunctive relief, the state officer or officers against whom such relief is sought acted in excess of statutory authority, or pursuant to an unconstitutional statute.” (Citation omitted; internal quotation marks omitted.) Lyon v. Jones, 291 Conn. 384, 396-97, 968 A.2d 416 (2009); see Kelly v. University of Connecticut Health Center, 290 Conn. 245, 252, 963 A.2d 1 (2009) (noting that state cannot be sued without its consent); see also Martinez v. Dept. of Public Safety, 263 Conn. 74, 78-80, 818 A.2d 758 (2003). In the present case, the plaintiffs argument is not that sovereign immunity has been waived or that the defendants have acted in excess of statutory authority or pursuant to an unconstitutional statute but, rather, that taking depositions of the defendants will not affect the state, and, therefore, the doctrine does not apply. See Gold v. Rowland, supra, 296 Conn. 215.

Underlying the action in the present case, the plaintiff had filed a claim with the commissioner seeking permission to sue the state. “The legislature has provided for a claims commissioner who may, when he deems it just and equitable, authorize suit against the state. See General Statutes § 4-142.” Ayantola v. Board of Trustees of Technical Colleges, 116 Conn. App. 531, 534, 976 A.2d 784 (2009). Our Supreme Court has described the commissioner as “the gatekeeper through which [actions] against the state must pass.” (Internal quotation marks omitted.) Lyon v. Jones, supra, 291 Conn. 401; see DaimlerChrysler Corp. v. Law, 284 Conn. 701, 723, 937 A.2d 675 (2007). “The claims commissioner has discretionary authority to pay or reject claims, to make recommendations to the legislature with regard to claims, and to authorize suit against the state.” Martinez v. Dept. of Public Safety, supra, 263 Conn. 84; see General Statutes § 4-160 (a).

This appeal presents two substantive issues. The first is whether the doctrine of sovereign immunity applies in the present case. Intertwined with that issue is whether the plaintiffs bill of discovery, an independent action commenced in the Superior Court, constitutes an impermissible collateral attack on the commissioner. We need not reach these issues, however, because the plaintiff has failed to exhaust its remedies before the commissioner.

“As a general matter, the doctrine of exhaustion of remedies fosters an orderly process of administrative adjudication and judicial review, offering a reviewing court the benefit of the agency’s findings and conclusions. It relieves courts of the burden of prematurely deciding questions that, entrusted to an agency, may receive a satisfactory administrative disposition and avoid the need for judicial review.” Owner-Operators Independent Drivers Assn. of America v. State, 209 Conn. 679, 691-92, 553 A.2d 1104 (1989). Put another way, “[i]t is a cardinal principle of judicial review that when an adequate administrative remedy is provided by law, it should be exhausted.” (Internal quotation marks omitted.) Doe v. Heintz, 204 Conn. 17, 34, 526 A.2d 1318 (1987).

“Under our exhaustion of administrative remedies doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum. ... In the absence of exhaustion of that remedy, the action must be dismissed.” (Internal quotation marks omitted.) Caltabiano v. L & L Real Estate Holdings II, LLC, 122 Conn. App. 751, 758, 998 A.2d 1256 (2010); see Barde v. Board of Trustees, 207 Conn. 59, 66, 539 A.2d 1000 (1988) (trial court properly concluded it lacked jurisdiction where party failed to present matter to claims commissioner).

In the present case, the proceedings before the commissioner have not yet run their course. In other words, the commissioner has not made a final determination on the discovery process, nor the ultimate determination of whether the plaintiff may sue the state. The commissioner approved the use of written interrogatories to ascertain the knowledge of the defendants with respect to the security measures at the Middletown courthouse. It is possible that the responses to these written interrogatories may provide the plaintiff with all the information it needs to present its case to the commissioner. Additionally, in the event that the plaintiff believes it requires additional information from the defendants, it would then have the opportunity to raise the matter before the commissioner at that time and demonstrate precisely why the written responses amounted to an inadequate response. We note that the plaintiff has argued that written interrogatories are not an adequate substitution for a direct examination. While this may be true in some instances, the plaintiff has failed to demonstrate why, under the facts and circumstances of this case, written interrogatories amount to an inadequate discovery process. Simply put, the discovery process before the commissioner remains an ongoing process. Finally, we are mindful that the commissioner performs a legislative function. See D’Eramo v. Smith, 273 Conn. 610, 618, 872 A.2d 408 (2005); Perrone v. State, 122 Conn. App. 391, 398, 998 A.2d 256 (2010). A premature ruling from a court could usurp the legislative function of the commissioner and lead to an unnecessary conflict between the two branches of government.

Additionally, we note that if the plaintiff remains dissatisfied with the ultimate decision by the commissioner, the statutory scheme provides a procedure of review by the legislature. Specifically, General Statutes § 4-158 (b) provides in relevant part: “Any person who has filed a claim for more than seven thousand five hundred dollars may request the General Assembly to review a decision of the Claims Commissioner (1) ordering the denial or dismissal of the claim pursuant to subdivision (1) of subsection (a) of this section, including denying or dismissing a claim that requests permission to sue the state . . . .” We note that this opportunity for a direct appeal to the legislature remains a separation of powers concern; that is, an encroachment by the coruts on the prerogative of a coequal branch of government. For all these reasons, we conclude that the plaintiff has failed to exhaust the remedies provided by the statutory framework associated with the commissioner, and, therefore, the trial court lacked jurisdiction to consider the merits of the action for a bill of discovery.

The judgment is affirmed.

In this opinion the other judges concurred.

       For the sake of convenience and consistency with the parties and the trial court, we refer to the estate of Donna Bochicchio as the plaintiff in this opinion.

       “The bill of discovery is an independent action in equity for discovery, and is designed to obtain evidence for use in an action other than the one in which discovery is sought. ... As a power to enforce discovery, the bill is within the inherent power of a court of equity that has been a procedural tool in use for centuries. . . . The bill is well recognized and may be entertained notwithstanding the statutes and rules of court relative to discovery. . . . Furthermore, because a pure bill of discovery is favored in equity, it should be granted unless there is some well founded objection against the exercise of the court’s discretion.” (Internal quotation marks omitted.) H & L Chevrolet, Inc. v. Berkley Ins. Co., 110 Conn. App. 428, 433, 955 A.2d 565 (2008).

       We note that after the events underlying this appeal, Judge Quinn was appointed as the chief court administrator. The present claims against her do not pertain to or involve her responsibilities and duties as the chief court administrator. See General Statutes §§ 51-lb (b) and 51-5a.

       “In implementing article eleventh, § 4, of our state constitution, the legislature has established a tribunal, the claims commissioner, for the adjudication of claims against the state where monetary relief is sought. . . . The claims commissioner is authorized to approve immediate payment of just claims not exceeding [$7500]. . . . For claims greater than that sum, the claims commissioner must recommend their payment or rejection to the general assembly. . . . The claims commissioner also, when he deems it just and equitable, may effectively waive the state’s sovereign immunity by authorizing suit on any claim which, in his opinion, presents an issue of law or fact under which the state, were it a private person, could be liable.” (Citations omitted; internal quotation marks omitted.) Doe v. Heintz, 204 Conn. 17, 35, 526 A.2d 1318 (1987).

       General Statutes § 4-160 (a) provides: “When the Claims Commissioner deems it just and equitable, the Claims Commissioner may authorize suit against the state on any claim which, in the opinion of the Claims Commissioner, presents an issue of law or fact under which the state, were it a private person, could be liable.”
      General Statutes § 4-160 (c) provides that in an action authorized by the claims commissioner pursuant to subsection (a) of § 4-160, “[t]he state waives its immunity from liability and from suit in each such action and waives all defenses which might arise from the eleemosynary or governmental nature of the activity complained of. The rights and liability of the state in each such action shall be coextensive with and shall equal the rights and liability of private persons in like circumstances.”

       Specifically, the plaintiff alleged that the judicial branch employees “failed to notify and/or protect the [pjlaintiffs decedent when [they] knew or should have known she was in danger; they failed to confiscate contraband from . . . Michael Bochicchio, namely, his handgun, which he had attempted to bring into the courthouse; they failed to arrest Michael Bochic-chio when he committed the felony crime of impersonation of a police officer ... in the presence of judicial marshals; and they failed to follow the written policies and procedures of their department.”

       In the memorandum of law in support of their motion to dismiss, the defendants indicated that the plaintiff had not submitted written interrogatories.

       “[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.” (Internal quotation marks omitted.) C. R. Klewin Northeast, LLC v. State, 299 Conn. 167, 175, 9 A.3d 326 (2010).

       The trial court noted that the plaintiffs claim was not that an exception to the doctrine of sovereign immunity applied. Instead, the plaintiff relied on language from Gold v. Rowland, 296 Conn. 186, 215, 994 A.2d 106 (2010), in which our Supreme Court indicated that if the state is unaffected by a judgment, its consent to suit and waiver of sovereign immunity is unnecessary.

       The defendants raise the exhaustion issue for the first time on appeal and have failed to file a preliminary statement of the issues in accordance with Practice Book § 63-4. The issue, nonetheless, may be reviewed because it implicates the trial court’s subject matter jurisdiction and, as a result, may be raised at any time. See Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 556-57, 529 A.2d 666 (1987). Additionally, we note that “[w]e may affirm the court’s judgment on a dispositive alternate ground for which there is support in the trial court record.” (Internal quotation marks omitted.) Bahjat v. Dadi, 123 Conn. App. 10, 15 n.2, 1 A.3d 212 (2010).

       We note, as a general matter, that “[t]he Superior Court lacks jurisdiction to hear appeals from the decisions of the commissioner. [T]he trial court does not have jurisdiction over an administrative appeal from the claims commissioner’s discretionary denial of authorization to bring an action against the state because [t]he commissioner of claims performs a legislative function directly reviewable only by the General Assembly. . . . D’Eramo v. Smith, 273 Conn. 610, 618, 872 A.2d 408 (2005).” (Internal quotation marks omitted.) Perrone v. State, 122 Conn. App. 391, 398, 998 A.2d 256 (2010).

       See Doe v. Heintz, 204 Conn. 17, 37, 526 A.2d 1318 (1987) (directing trial court to dismiss plaintiffs claim against state for attorney’s fees because plaintiff did not exhaust administrative remedies by failing to first present claim to claims commissioner); Barde v. Board of Trustees, 207 Conn 59, 60-61, 539 A.2d 1000 (1988) (trial court properly dismissed monetary claim against state for plaintiffs failure to exhaust administrative remedies before claims commissioner).

       See General Statutes § 4-158 (a).


author: PER CURIAM.

text:
    JOHN ADAMS MORGAN v. SONJA TREMONT MORGAN
    (AC 29877)
    Gruendel, Alvord and SchaUer, Js.
    Argued April 19
    officially released June 26, 2012

      Norman A. Roberts II, for the appellant (plaintiff).

      Louise T. Truax, for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, John Adams Morgan, appeals from the judgment of dissolution rendered by the trial court. We dismiss the appeal for lack of a final judgment.

The judgment of dissolution provided that, pursuant to the parties’ postnuptial agreement, the plaintiff owed the defendant, Sonja Tremont Morgan, alimony and child support, commencing the first of the month after the dissolution action was filed. The court ordered that the sum would “accrue with statutory interest from the date the monthly payments were due” but did not specify a rate of interest. The plaintiff appealed from the judgment of dissolution. The defendant filed a motion to clarify the judgment and thereafter filed a motion to open the judgment. On July 28, 2009, the court issued a memorandum of decision clarifying various orders and opening the judgment for two limited purposes: (1) to calculate the arrearage owed that had accrued since the close of evidence and (2) to clarify, in an evidentiary hearing, the best way to provide security for child support upon the death of the plaintiff. The plaintiff filed an amended appeal, challenging the dissolution judgment and the July 28, 2009 ruling.

We conclude, and the parties agreed at oral argument before this court, that the appeal was not taken from a final judgment. Although the judgment of dissolution included an award of prejudgment interest, the court did not establish the applicable rate of interest. In Gianetti v. Meszoros, 268 Conn. 424, 425-26, 844 A.2d 851 (2004), our Supreme Court determined that, where the trial court did not determine the rate of prejudgment interest to be awarded pursuant to General Statutes § 37-3a, the appeal was not taken from a final judgment. “The lack of [a] final judgment . . . implicates the subject matter jurisdiction of this court. ... If there is no final judgment, we cannot reach the merits of the appeal.” (Internal quotation marks omitted.) Singhaviroj v. Board of Education, 124 Conn. App. 228, 231-32, 4 A.3d 851 (2010). Accordingly, we conclude that the appeal in the present case must be dismissed for lack of a final judgment.

Because the underlying appeal is defective for lack of a final judgment, so, too, is the amended appeal. The granting of a motion to open a nonfinal judgment cannot itself be a final judgment. See Blue Cross/Blue Shield of Connecticut, Inc. v. Gurski, 49 Conn. App. 731, 733, 715 A.2d 819 (no appeal will lie from ruling on motion to open nonfinal judgment), cert. denied, 247 Conn. 920, 722 A.2d 809 (1998); cf. Clinton v. Middlesex Mutual Assurance Co., 37 Conn. App. 269, 271, 655 A.2d 814 (1995) (denial of plaintiffs’ motion for temporary injunction not appealable final judgment; therefore, denial of motion to reconsider that order likewise nonfinal judgment).

The appeal is dismissed and the case is remanded to the trial court for a determination of the amount of prejudgment interest to be awarded to the defendant.


text:
    STATE OF CONNECTICUT v. DESHAWN D.

    (AC 33504)
    Robinson, Sheldon and Bishop, Js.

      Argued January 31
    officially released June 26, 2012

      Joshua Michtom, for the appellant (defendant).

      Rita M. Shair, senior assistant state’s attorney, with whom were Brian Casinghino, senior assistant state’s attorney, and, on the brief, Gail P. Hardy, state’s attorney, for the appellee (state).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79a-12, 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

BISHOP, J.

The defendant, Deshawn D., appeals from the judgment of the trial court committing him to the custody of the department of children and families (department) for a period of fourteen months and denying his motion, filed at the time of disposition, for a reduction in the term of his delinquency commitment based on credit for the predisposition time he had been held in detention. On appeal, he claims that (1) the court improperly denied his motion for a reduction in the term of his delinquency commitment and (2) the court’s failure to give credit for predisposition detention on juvenile commitments violates procedural due process. We disagree and, accordingly, affirm the judgment of the trial court.

The following factual and procedural history is relevant to our consideration of the issues on appeal. On April 18,2011, the juvenile defendant was charged with a violation of probation under General Statutes § 46b-120. The defendant had been placed on probation on March 8, 2011, for a period of six months. As part of the probation orders, the defendant had been ordered to reside at home with his grandfather, who was his guardian at the time. Nevertheless, the defendant had left home for at least four days in April, 2011. As a result, on April 21, 2011, the defendant was taken into custody pursuant to an order issued by the Superior Court for Juvenile Matters in Hartford. He was thereafter held at various juvenile detention centers for a total of twenty-three days pending the disposition of his case. On May 13, 2011, the defendant admitted that he violated his probation. At the disposition hearing, the state recommended that the defendant be committed to the department and placed at the Connecticut Juvenile Training School for fifteen months. Although the defendant agreed with the state’s recommendation that he be committed, he sought a commitment period of nine months. He filed a motion through which he sought credit against the length of his commitment for twenty-three days of predisposition detention. The court committed the defendant to the custody of the department for placement at the Connecticut Juvenile Training School for a period of fourteen months with no credit given for his predisposition detention. This appeal followed.

I

The defendant first claims that he has the right to credit for the period of predisposition detention based on the plain language of General Statutes § 18-98d, which, he argues, applies to delinquency proceedings. He argues, as well, that General Statutes § 46b-141d does not forbid the application of credit on sentences of juvenile commitment for predisposition detention and that the application of § 18-98d to juvenile delinquency proceedings is consistent with the overall goals of the juvenile justice system. We are not persuaded.

On appeal, the defendant’s linguistic argument is subject to plenary review. Grady v. Somers, 294 Conn. 324, 332, 984 A.2d 684 (2009). “The principles that govern statutory construction are well established. When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . .” (Internal quotation marks omitted.) Sokaitis v. Bakaysa, 293 Conn. 17, 22-23, 975 A.2d 51 (2009).

Contrary to the defendant’s statutory construction argument, § 18-98d, entitled “Credit for presentence confinement,” pertains only to those individuals who are committed to the control and custody of the commissioner of correction and not to those who have been subject to commitment under a different authority. See Johnson v. Manson, 196 Conn. 309, 312, 321 n.12, 493 A.2d 846 (1985) (presentence credit is available only to pretrial detainees incarcerated in facility administered by commissioner of correction or who otherwise are subject to control of commissioner of correction), cert. denied, 474 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787 (1986); see also Hammond v. Commissioner of Correction, 259 Conn. 855, 866-67, 872, 792 A.2d 774 (2002). Because the defendant was committed to the custody of the department of children and families and not to the department of correction, § 18-98d is facially inapplicable to his detention circumstances.

In sum, the statutory provisions for the disposition of juvenile offenders and adult convicts are substantially dissimilar. Commitments of juvenile offenders to the department are made pursuant to General Statutes § 46b-140 (f), which authorizes the placement of juveniles into the custody of the commissioner of children and families, and not into the custody of the commissioner of correction, while § 18-98d contemplates the commitment of convicted adults to the department of correction.

The defendant also argues that the provisions of § 46b-141d support, by analogy, his entitlement to credit for his predisposition detention. We are not persuaded. Section 46b-141d, by its explicit terms, deals with credit for predisposition detention for a juvenile offender who is sentenced to a period of probation and provides, generally, for a credit toward the period of probation imposed at disposition for any days the juvenile offender served in detention prior to disposition. Importantly, § 46b-141d does not address, by its language, the situation presented in the case at hand in which the juvenile offender is committed to a period of confinement rather than probation. It is clear, however, from the provision of § 46b-141d regarding detention credits against probation that, if the General Assembly had desired to provide similar treatment to juvenile offenders committed to a period of confinement, not probation, the General Assembly could have done so.

Accordingly, neither the plain language of § 18-98d nor that of § 46b-141d provides credit for predisposition detention when a juvenile offender is ordered committed to a period of confinement. Therefore, the court properly denied the defendant’s motion for a reduction in the term of his delinquency commitment.

II

The defendant’s final claim is that, by denying him credit for predisposition detention, the court has deprived him of his due process rights under the fourteenth amendment to the United States constitution. More specifically, he argues that such a denial unconstitutionally discourages the exercise of constitutional trial rights, thereby rendering guilty pleas in such circumstances inherently involuntary and infringing on the right to due process. We disagree.

Our courts have clearly established that “presentence [confinement] credit is a creature of statute and that, as a general rule, such credit is not constitutionally required. . . . Because such credit is not constitutionally mandated, it is not one of those few rights deemed so fundamental that the state cannot impinge upon it in the absence of a compelling reason. . . . Credit for presentence incarceration does not fall within this exalted group of rights that are recognized as fundamental.” (Citations omitted.) Hammond v. Commissioner of Correction, supra, 259 Conn. 879-81. Thus, the defendant’s due process claim lacks constitutional footing. Moreover, because there is no statute by which a juvenile offender committed to the department for a period of confinement has any entitlement to predisposition detention credit, it cannot reasonably be said that the absence of such a benefit is a detriment to a knowing and intelligent waiver of one’s right to a contested adjudicatory hearing.

Furthermore, the defendant made no claim in the Superior Court that his admission was conditioned on his successful pursuit of predisposition detention credit or that his admission was, in any regard, involuntary or coerced. To the contrary, the record discloses that the defendant’s decision to admit his violation of probation was made with the aid of counsel, who was active throughout the proceedings. Accordingly, the record discloses no basis for the defendant’s due process claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 18-98d provides in relevant part: “(a) ... (2) (A) Any person convicted of any offense and sentenced on or after October 1, 2001, to a term of imprisonment who was confined to a police station or courthouse lockup in connection with such offense because such person was unable to obtain bail or was denied bail shall, if subsequently imprisoned, earn a reduction of such person’s sentence in accordance with subdivision (1) of this subsection equal to the number of days which such person spent in such lockup, provided such person at the time of sentencing requests credit for such presentence confinement. Upon such request, the court shall indicate on the judgment mittimus the number of days such person spent in such presentence confinement. . . .
      “(c) The Commissioner of Correction shall be responsible for ensuring that each person to whom the provisions of this section apply receives the correct reduction in such person’s sentence; provided in no event shall credit be allowed under subsection (a) of this section in excess of the sentence actually imposed.”

       The defendant’s interpretation also overlooks the fact that the plain language of subsection (c) of § 18-98d gives the commissioner of correction the responsibility for ensuring that “each person to whom the provisions of this section apply receives the correct reduction in such person’s sentence . . . ." The commissioner of correction cannot be responsible for providing a juvenile such as the defendant with such credit for the simple reason that juveniles are not committed to his custody.

       General Statutes § 46b-141d provides: “Any child who is arrested and held in a detention center, an alternative detention center or a police station or courthouse lockup prior to the disposition of a juvenile matter shall, if subsequently convicted as delinquent by the Superior Court and sentenced to a period of probation, earn a reduction of such child’s period of probation, including any extensions thereof, equal to the number of days that such child spent in such detention center or lockup.”

       Our research into the legislative history of § 46b-141d did not surface any discussion regarding juveniles who, at disposition, are committed to a period of confinement. If any consideration was given to treating juveniles committed to confinement in a manner similar to juveniles placed on probation, it is not apparent from the legislative history.

       Because we conclude that the statutory language of §§ 18-98d and 46b-141d unambiguously does not pertain to a juvenile offender committed to the department, we do not reach the defendant’s claim, based on the rule of lenity, that an ambiguous criminal statute should be construed against the state. “[A] necessary predicate to the application of the rule of lenity is a conclusion that the statute is ambiguous, meaning that it yields more than one reasonable interpretation . . . .” In re William D., 284 Conn. 305, 320, 933 A.2d 1147 (2007). Here, the defendant has failed to demonstrate any statutory ambiguity. See State v. Lutters, 270 Conn. 198, 219, 853 A.2d 434 (2004) (“courts do not apply the rule of lenity unless a reasonable doubt persists about a statute’s intended scope even after resort to the language and structure, legislative history, and motivating policies of the statute” [internal quotation marks omitted]).


author: ESPINOSA, J.

text:
    NONA MALAGUIT ET AL. v. SKI SUNDOWN, INC.
    (AC 33180)
    Lavine, Alvord and Espinosa, Js.

      Argued February 14
    officially released June 26, 2012

      Ralph J. Monaco, with whom were Thomas J. Lon-dregan, and on the brief, Jonathan T. Lane, for the appellants (plaintiff James Malaguit).

      Elizabeth F. Ahlstrand, with whom, on the brief, were Mark B. Seiger and Charles F. Gfeller, for the appellee (defendant).
   Opinion

ESPINOSA, J.

The substitute plaintiff James Malaguit appeals from the judgment of the trial court denying his motion to set aside the verdict, following a jury trial, in favor of the defendant, Ski Sundown, Inc. The plaintiff alleges that the court improperly (1) charged the jury on General Statutes § 29-212, (2) refused to provide the jury with the legislative history of § 29-212 to aid in its application of the statute, (3) failed to deliver an instruction concerning spoliation of evidence and (4) refused to instruct the jury that exculpatory language contained in documents that the defendant provided to the plaintiff should be disregarded as a matter of public policy. The defendant asserts that the general verdict rule prohibits review of the plaintiffs claims. We agree with the defendant, and, accordingly, affirm the judgment of the trial court.

The following undisputed factual and procedural history is relevant to our consideration of this appeal. On February 17, 2006, the plaintiff, who was fifteen years old at the time, went skiing at a ski area in New Hartford owned and operated by the defendant. While attempting to ski over a snow jump located within an area known as a “terrain park,” the plaintiff lost control and fell, landing in a way that severely injured his spine and left him a quadriplegic.

- The plaintiff brought his complaint in the Superior Court on February 5, 2008. The complaint alleged that the defendant was negligent by building and maintaining a snow jump, which created a hazard not inherent in the sport of skiing. In its answer, the defendant denied the allegations made in the complaint and raised two special defenses, namely, that, pursuant to § 29-212, the plaintiff assumed the risk for any injury caused by hazards inherent in the sport of skiing and that his damages were caused by his own negligence.

The defendant claimed that § 29-212 was a complete bar to any recovery by the plaintiff. The defendant argued that, under § 29-212, ski area operators were not liable for any injuries caused by terrain variations that were the result of “snow grooming.” According to the defendant, the snow jump in question had been created by a process of snow grooming, and, therefore, the plaintiff assumed the risk of any injury he suffered by using the jump.

The plaintiff opposed the defendant’s invocation of § 29-212, asserting that it was not applicable to the case because, as a matter of law, a snow jump is not a hazard inherent in the sport of skiing. Accordingly, the plaintiff argued that the corut should not instruct the jury on § 29-212. The court rejected the plaintiffs argument and, in its charge to the jury, included an instruction on § 29-212.

Before the court charged the jury, the plaintiff requested that the court’s instructions include an adverse inference charge on spoliation of evidence. As the basis for this request, the plaintiff cited the defendant’s failure (1) to take, in anticipation of litigation, pictures or videos of the snow jump on the night of the accident; (2) to interview witnesses on the night of the accident; and (3) to maintain photographs and videos of the ski jump on its website.

The court denied the plaintiffs request, holding that the plaintiff had failed to demonstrate how this evidence was necessary to prove an essential element of his case. The court noted that the plaintiff had taken his own photographs of the terrain park approximately two weeks after the accident. Furthermore, the court maintained that the plaintiff had failed to show that the defendant controlled the evidence in question.

On October 19, 2010, the jury returned a verdict for the defendant. On October 29, 2010, the plaintiff filed a motion to set aside the verdict, which motion the defendant opposed. The court accepted supplemental memoranda from the parties and, on December 23, 2010, it held a hearing on the motion. On February 3, 2011, the court issued its decision denying the motion. The plaintiff filed the present appeal on February 22, 2011. Additional facts will be set forth as necessary.

The defendant alleges that review of the plaintiffs claims is precluded by the general verdict rule. We agree. “The general verdict rule provides that if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party. ... In circumstances in which a party has requested interrogatories that fail to flesh out the basis of the jury’s verdict, this court has noted that the general verdict rule is still applicable because [i]t is not the mere submission of interrogatories that enables [the reviewing court] to make that determination; rather, it is the submission of properly framed interrogatories that discloses the grounds for the jury’s decision. . . . [I]n a case in which the general verdict rule operates, if any ground for the verdict is proper, the verdict must stand; only if every ground is improper does the verdict fall. . . .

“On the appellate level, the rule reheves an appellate court from the necessity of adjudicating claims of error that may not arise from the actual source of the jury verdict that is under appellate review. In a typical general verdict rule case, the record is silent regarding whether the jury verdict resulted from the issue that the appellant seeks to have adjudicated.” (Internal quotation marks omitted.) Crews v. Pudlinski, 129 Conn. App. 807, 811-12, 21 A.3d 568, cert. denied, 302 Conn. 948, 31 A.3d 384 (2011), cert. denied sub nom. Crews v. Lime Rock Associates, U.S. , 132 S. Ct. 1863, 182 L. Ed. 2d 644 (2012).

Our Supreme Court has held that “the general verdict rule applies to the following five situations: (1) denial of separate counts of a complaint; (2) denial of separate defenses pleaded as such; (3) denial of separate legal theories of recovery or defense pleaded in one count or defense, as the case may be; (4) denial of a complaint and pleading of a special defense; and (5) denial of a specific defense, raised under a general denial, that had been asserted as the case was tried but that should have been specially pleaded.” (Internal quotation marks omitted.) Tetreault v. Eslick, 271 Conn. 466, 472, 857 A.2d 888 (2004).

In the present case, the plaintiff made a timely request for interrogatories, but the court declined to submit them to the jury. The court stated in its memorandum of decision on the motion to set aside the verdict that “[t]he plaintiffs’ proposed interrogatories focused on the ski statute, and the court was concerned that, if the proposed interrogatories were to be used, the jury would perceive the court to be taking a critical view of the defendant’s case.” The defendant also had submitted proposed interrogatories, which, according to the court, “did not appear ... to be balanced.” Ultimately, the court determined that it “was unable to prepare interrogatories that would be useful but would not simultaneously appear to oversimplify the issues that were carefully delineated in the charge to the jury.” The plaintiff did not object to the court’s decision not to submit interrogatories to the jury.

This court has stated that “the failure of the plaintiffs to object to jury deliberation without interrogatories is the functional equivalent of a failure to request interrogatories.” Gajewski v. Pavelo, 32 Conn. App. 373, 381, 629 A.2d 465 (1993), rev’d on other grounds, 229 Conn. 829, 643 A.2d 1276 (1994). The plaintiff submitted proposed interrogatories to the court, but he failed to object to the court’s decision not to submit them to the jury. Furthermore, the plaintiff does not claim on appeal that the court’s submission of the matter to the jury without interrogatories was improper.

We observe that, even if the plaintiff properly had objected to the court’s refusal to submit interrogatories to the jury, the plaintiffs proposed interrogatories would not have shed any light on the basis of the jury’s verdict. In this case, the defendant denied the allegations of the plaintiffs complaint and pleaded two special defenses: (1) that, under § 29-212, the plaintiff assumed the risk for any injury caused by hazards inherent in the sport of skiing and (2) that his damages were caused by his own negligence. Accordingly, this case falls within the fourth category of cases in which the general verdict rule can apply, namely, the denial of a complaint accompanied by one or more special defenses. See Tetreault v. Eslick, supra, 271 Conn. 472.

Critically, as the court noted in its memorandum of decision, the plaintiffs proposed interrogatories dealt only with the defendant’s first special defense, that the plaintiff assumed the risk for any injury caused by hazards inherent in the sport of skiing. They did not address either the defendant’s denial of the allegations of the complaint or its second special defense of comparative negligence. Therefore, even if the court had submitted these interrogatories to the jury, we still would have to speculate as to whether the jury found that the plaintiff had failed to establish the allegations made in the complaint or that the defendant successfully had demonstrated that the plaintiff was more negligent than the defendant and that his own negligence was the proximate cause of his injuries. “When there are alternative bases for the verdict, it is necessary for the interrogatories to reveal the actual grounds for the jury’s verdict in order for the general verdict rule to be precluded.” (Internal quotation marks omitted.) Thames River Recycling, Inc. v. Gallo, 50 Conn. App. 767, 782, 720 A.2d 242 (1998). Thus, the plaintiffs interrogatories, even if submitted to the jury, would not have revealed the basis of the jury’s verdict.

The plaintiff claims that the general verdict rule is not applicable in the present case because, in light of the claimed errors raised on appeal, the jury did not have an untainted route by which to reach its verdict. The plaintiff cites Monterose v. Cross, 60 Conn. App. 655, 661, 760 A.2d 1013 (2000), in which this court held that the general verdict rule did not apply to a negligence case in which the trial court improperly failed to instruct the jury on the appropriate standard of care that the defendant owed to the plaintiff. In that case, although the defendant’s answer included both a general denial and a special defense, this court concluded that “[e]ven if we assume that the jury rejected the plaintiffs allegations of negligence and found him con-tributorily negligent, both of those determinations are undermined by the court’s failure to instruct the jury as to the proper standard of care. There is therefore no ‘untainted route’ to the verdict.” Id.

We conclude that, unlike in Monterose, in the present case, none of the plaintiffs claims on appeal raise the possibility of an error that would relate to all of the possible grounds on which the jury’s verdict might be based. Specifically, we conclude that none of the plaintiffs claims relate to the defendant’s special defense of comparative negligence and that, therefore, the jury had an untainted route by which to reach its verdict. The plaintiffs first two claims, that the court improperly charged the jury on § 29-212 and improperly refused to provide the jury with the legislative history of § 29-212 to aid in its application of the statute, relate only to the defendant’s special defense under § 29-212. They have no bearing on whether the defendant’s actions constituted negligence or whether the plaintiff was comparatively negligent. After instructing the jury on negligence and comparative negligence, the court turned to § 29-212. The court explained to the jury: “There is a statute that provides that, in certain instances, skiers are considered to have assumed the risk of injury caused by hazards inherent in the sport of skiing.” After reading the text of the statute to the jury, the court continued: “The plaintiffs have the burden of proving, by a preponderance of the evidence, that the statute does not apply in this case. If the plaintiffs prove that the statute does not apply in this case, then you need not consider this statute any further.” The court’s instructions on § 29-212 clearly framed the application of the statute as an issue distinct from that of negligence and comparative negligence. Accordingly, the plaintiffs claims of error relating to these instructions concern only the defendant’s first special defense, that the plaintiff assumed the risk of injury under § 29-212.

Similarly, the plaintiffs remaining two claims, that the court improperly failed to deliver an instruction concerning spoliation of evidence and improperly refused to instruct the jury that exculpatory language contained in documents that the defendant provided to the plaintiff should be disregarded as a matter of public policy, relate only to the plaintiffs negligence claim against the defendant. They do not relate to the jury’s ability properly to find for the defendant on either of its special defenses. The spoliation of evidence claim concerned alleged evidence of the defendant’s negligence, although the court found that the plaintiff failed to establish that the evidence in question was necessary to prove an essential element of his case. The public policy argument advanced by the plaintiff against exculpatory language contained in certain documents provided to the plaintiff by the defendant also concerned only whether the jury properly could find that the defendant acted negligently. On a review of the entire record, we conclude that neither of these claims relates to the defendant’s special defenses. Because none of the plaintiffs claims raised on appeal relate to the defendant’s special defense of comparative negligence, the jury had an untainted route by which to reach its verdict.

Finally, the plaintiff claims that the general verdict rule is not applicable in cases involving several different specifications of negligent conduct in support of a single cause of action for negligence. The plaintiff cites to Ziman v. Whitley, 110 Conn. 108, 116, 147 A. 370 (1929), for the proposition that “[w]here . . . different specifications of fact are alleged in support of one essential right, as where various grounds of negligence are alleged as a basis for a recovery for injuries resulting from a particular accident, it is the sounder policy to permit an appellant to take advantage upon appeal of errors affecting one specification of negligence only, even though no interrogatories have been submitted.”

This claim is without merit. As noted previously, this case falls within the fourth category of cases to which the general verdict rule applies, in which the defendant denies the allegations of the complaint and pleads one or more special defenses. See Tetreault v. Eslick, supra, 271 Conn. 472. We do not interpret Ziman in the broad manner suggested by the plaintiff. The court in Ziman was contrasting the situation that it described in the language quoted previously with the situation contemplated by the third category of cases subject to the general verdict rule, in which a defendant denies separate legal theories of recovery or defense in one count or defense. See Ziman v. Whitley, supra, 110 Conn. 115 (“where in a complaint or answer, although separate counts or defenses are not stated, rebanee is placed upon grounds of action or defense which are distinct, not because they involve specific sets of facts forming a part of the transaction but in the essential basis of the right rebed upon, interrogatories should on proper request of counsel be submitted”). Therefore, the present case is distinguishable from Ziman.

The judgment is affirmed.

In this opinion the other judges concurred.

       James Malaguit’s mother, Nona Malaguit, commenced the action in her representative capacity. During the course of the trial, James Malaguit reached the age of majority, and Nona Malaguit moved the court to substitute as party plaintiffs James Malaguit in his individual capacity and Nona Mala-guit in her individual capacity. The court granted this motion. Nona Malaguit did not file a separate appearance before this court, however. Accordingly, we refer to James Malaguit as the plaintiff.

       General Statutes § 29-212 provides in relevant part:
      “(a) For the purposes of this section:
      “(1) ‘Skier’ includes any person who is using a ski area for the purpose of skiing or who is on the skiable terrain of a ski area as a spectator or otherwise, but does not include (A) any person using a snow tube provided by a ski area operator, and (B) any person who is a spectator while in a designated spectator area during any event;

        “(2) ‘Skiing’ means sliding downhill or jumping on snow or ice using skis, a snowboard, snow blades, a snowbike, a sit-ski or any other device that is controllable by its edges on snow or ice or is for the purpose of utilizing any skiable terrain, but does not include snow tubing operations provided by a ski area operator; and
      “(3) ‘Ski area operator’ means aperson who owns or controls the operation of a ski area and such person’s agents and employees.
      “(b) Each skier shall assume the risk of and legal responsibility for any injury to his or her person or property caused by the hazards inherent in the sport of skiing. Such hazards include, but are not limited to: (1) Variations in the terrain of the trail or slope which is marked in accordance with subdivision (3) of section 29-211 or variations in surface or subsurface snow or ice conditions, except that no skier assumes the risk of variations which are caused by the ski area operator unless such variations are caused by snow making, snow grooming or rescue operations ....
      “(c) The provisions of this section shall not apply in any case in which it is determined that a claimant’s injury was not caused by a hazard inherent in the sport of skiing.”

       The verdict stated: “We the jury find issue in favor of the defendant, Sid Sundown, Inc., and against the plaintiffs James Malaguit and Nona Malaguit.”

       We note that, although the defendant raised the general verdict rule in its opposition to the plaintiffs’ motion to set aside the verdict, the court did not address that argument but addressed the merits of the plaintiffs’ claims in its memorandum of decision. Although it appears that the court was not persuaded by the defendant’s argument under the general verdict rule, we may affirm the court’s judgment on different grounds. See, e.g., Vaillancourt v. Latifi, 81 Conn. App. 541, 544 n.4, 840 A.2d 1209 (2004).


author: PELLEGRINO, J.

text:
    STATE OF CONNECTICUT v. ANTWAN BYRD
    (AC 33837)
    Lavine, Robinson and Pellegrino, Js.

      Argued April 18
    officially released June 26, 2012

      Richard E. Condon, Jr., senior assistant public defender, for the appellant (defendant).

      Denise B. Smoker, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Stacey Haupt, assistant state’s attorney, for the appellee (state).
   Opinion

PELLEGRINO, J.

The defendant, Antwan Byrd, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a, criminal possession of a firearm in violation of General Statutes § 53a-217 and carrying a pistol without a permit in violation of General Statutes § 29-36. On appeal, the defendant claims that by excluding evidence of the victim’s prior conviction for criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c, the trial court denied the defendant his right to due process of law under the state and federal constitutions. We disagree and accordingly affirm the judgment of the trial court.

The record discloses the following facts and procedural history. On the evening of January 17, 2008, the defendant and the victim, Lavias Phillips, encountered one another on Bellevue Road near its intersection with Goffe Terrace in New Haven. An argument occurred between the two men, and they began fighting. The dispute escalated when one of them brandished a handgun. For approximately eight minutes, the defendant and the victim wrestled — first on their feet and then on the ground — for possession of the handgun. The defendant ultimately wrested control of the handgun from the victim. They then returned to their feet and continued to grapple with one another. The defendant then shot the victim. The victim remained on his feet for several more minutes and attempted to regain control of the handgun from the defendant. The defendant, however, maintained possession of the handgun and fled the scene as the victim collapsed on the pavement. The victim was taken to the hospital via ambulance and was pronounced dead shortly after arrival. Thereafter, the defendant was arrested and charged by substitute information with the aforementioned offenses.

During the trial, the defendant sought to present evidence establishing that he had acted in self-defense and that the victim, acting in a manner consistent with his violent character, initiated the physical altercation. Attempting to demonstrate the victim’s propensity for violence, the defendant filed a motion in limine, dated November 18, 2009, to admit evidence of the victim’s October 10, 2006 conviction of criminal possession of a pistol or revolver in violation of § 53a-217c. The circumstances surrounding the conviction of the victim under § 53a-217c are as follows. An acquaintance of the victim, Michael Bianchi, asked the victim if he could borrow $200. The victim explained that he did not have $200 but that he could lend Bianchi $160 and $50 worth of crack cocaine provided that Bianchi gave him collateral for the loan. Bianchi gave the victim a Smith & Wesson .38 caliber firearm that belonged to Bianchi’s roommate, Charles Lestage, as collateral. Lestage reported the gun missing to the police, and thereafter, following a police investigation, the victim was arrested, charged and convicted under § 53a-217c. In denying the defendant’s motion in limine, the court stated: “I do not find that it’s a crime of violence. The mere possession of a handgun, particularly possession of a handgun where it’s held solely as collateral . . . there’s no evidence of an intent to use it, there’s no evidence that the firearm was used, I don’t find it to be a conviction of a crime of — of violence. So, for that reason, I’m not going to allow it.”

After the presentation of evidence, the case was committed to the jury, which returned a verdict of guilty on all counts. The court rendered judgment in accordance with the jury’s verdict and sentenced the defendant to a total effective term of forty-five years in prison. From that judgment, the defendant now appeals.

The defendant’s sole claim on appeal is that the ruling of the court excluding evidence of the victim’s conviction under § 53a-217c was improper because it denied the defendant his right to present a defense in violation of his right to due process under the state and federal constitutions. The defendant argues that the victim’s conviction under § 53a-217c is a crime of violence and is therefore admissible as evidence of the victim’s violent character on the issue of whether the victim was the initial aggressor in support of the defendant’s self-defense claim. The defendant specifically asserts that the court improperly found that the circumstances underlying the victim’s conviction under § 53a-217c did not constitute a crime of violence. We disagree.

“Consistent with the defendant’s right fairly to inform the jury of facts material to the defense, [i]t has long been the law in this state that, in a homicide prosecution, an accused may introduce evidence of the violent, dangerous or turbulent character of the victim to show that the accused had reason to fear serious harm, after laying a proper foundation by adducing evidence that he acted in self-defense .... [T]he victim’s violent character [can] be proved by reputation testimony, by opinion testimony, or by evidence of the deceased’s convictions for crimes of violence . . . .” (Citations omitted; internal quotation marks omitted.) State v. Carter, 228 Conn. 412, 422-23, 636 A.2d 821 (1994); see also Conn. Code Evid. § 4-4 (b) (“[i]n cases in which the accused in a homicide or criminal assault case may introduce evidence of the violent character of the victim, the victim’s character may also be proved by evidence of the victim’s conviction of a crime of violence”). “Notwithstanding this general rule of admissibility, [our Supreme Court has] held that the defendant is not authorized to introduce any and all convictions of crimes involving violence, no matter how petty, how remote in time, or how dissimilar in their nature to the facts of the alleged aggression. In each case the probative value of the evidence of certain convictions rests in the sound discretion of the trial court.” (Internal quotation marks omitted.) State v. Carter, supra, 423.

In assessing the probative value of the evidence of certain convictions the court looks at the “underlying facts and circumstances” of the crime in order to determine whether the victim’s convictions are “too remote in time or lacking elements of violence.” State v. Miranda, 176 Conn. 107, 114-15, 405 A.2d 622 (1978). “[E]videntiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Dehaney, 261 Conn. 336, 355, 803 A.2d 267 (2002), cert. denied, 537 U.S. 1217, 123 S. Ct. 1318, 154 L. Ed. 2d 1070 (2003).

In regard to the issue on appeal, the court reasonably could have found that the victim’s conviction under § 53a-217c was not a crime of violence on the grounds that the victim possessed the gun solely as collateral and that he did not intend to use the gun in a violent manner. This fact intensive analysis is consistent with the approach of our Supreme Court. See State v. Miranda, supra, 176 Conn. 114-15. Accordingly, we conclude that the court did not abuse its discretion in excluding evidence of the victim’s prior conviction.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant’s claim that the ruling of the court excluding certain evidence violated his right to due process under the state and federal constitutions is an evidentiary claim masquerading as a constitutional claim. See, e.g., State v. Walker, 215 Conn. 1, 5, 574 A.2d 188 (1990) (“the admissibility of evidence is a matter of state law and unless there is resultant denial of fundamental fairness or the denial of a specific constitutional right, no constitutional issue is involved” [internal quotation marks omitted]). The defendant has failed to cite a controlling case in which the refusal of a court to admit evidence of a victim’s conviction of a crime on the basis that the crime was not of a violent nature, amounted to an error under the state or federal constitutions. Although the defendant frames his claim on appeal as one of constitutional magnitude, the defendant also acknowledges that the “trial court’s ruling excluding the evidence is . . . reviewed under the abuse of discretion standard of review.” We conclude that the defendant’s claim does not implicate a constitutional right. Accordingly, we review the court’s evidentiary ruling under the abuse of discretion standard. See State v. Dehaney, 261 Conn. 336, 354-55, 803 A.2d 267 (2002), cert. denied, 537 U.S. 1217, 123 S. Ct. 1318, 154 L. Ed. 2d 1070 (2003).

       The defendant also relies on United States v. Dillard, 214 F.3d 88, 97 (2d Cir. 2000), cert. denied, 532 U.S. 907, 121 S. Ct. 1232, 149 L. Ed. 2d 141 (2001), in support of his claim that the victim’s conviction under § 53a-217c is a crime of violence. In that case, the United States Court of Appeals for the Second Circuit held that the crime of a felon in possession of a firearm in violation of 18 U.S.C. § 922 (g) (1) is a “crime of violence” as defined in 18 U.S.C. § 3156 (a) (4). The defendant’s argument is unavailing. The definition of “crime of violence” contained in 18 U.S.C. § 3156 (a) (4) is part of the Bail Reform Act of 1984. See 18 U.S.C. § 3141 et seq. If a crime falls within the statutory definition of a “crime of violence,” the act commands a special hearing in which a defendant will be detained if considered too dangerous to be released into society under precautionary conditions. See United States v. Dillard, supra, 90. Examining whether a crime is a “crime of violence” for purposes of determining if a special hearing is required under the act, is an entirely different analysis than determining whether a crime is a “crime of violence” under our code of evidence as it relates to establishing the violent nature of the victim.
      We note, in addition, that even for purposes of the Bail Reform Act, a number of federal circuit courts have held that a felon in possession of a firearm is not a “crime of violence.” See United States v. Bowers, 432 F.3d 518, 521 (3rd Cir. 2005); United States v. Johnson, 399 F.3d 1297, 1298 (11th Cir. 2005); United States v. Lane, 252 F.3d 905, 907 (7th Cir. 2001); United States v. Singleton, 182 F.3d 7, 27 (D.C. Cir. 1999). The split of authority makes the defendant’s argument all the more tenuous.
      Contrary to the defendant’s position, this court must look to the “underlying facts and circumstances” of the crime in order to determine whether it is a violent crime for purposes of admissibility. State v. Miranda, 176 Conn. 107, 114-15, 405 A.2d 622 (1978). We are bound by the approach and cannot adopt the alternative analysis proffered by the defendant. See State v. Brown, 73 Conn. App. 751, 756, 809 A.2d 546 (2002) (“Our Supreme Court is the ultimate arbiter of the law in this state. We, as an intermediate appellate court, cannot reconsider the decisions of our highest court.”); State v. Rodriguez, 63 Conn. App. 529, 532, 777 A.2d 704 (“we, as an intermediate appellate court, do not reevaluate Supreme Court decisions and are bound by those decisions”), cert. denied, 256 Conn. 936, 776 A.2d 1151 (2001).