author: ROBINSON, J.

text:
    STATE OF CONNECTICUT v. MICHAEL J. MARSALA
    (AC 29839)
    Flynn, C. J., and Robinson and Alvord, Js.

      Argued May 29
    officially released August 18, 2009

      Heather M. Wood, deputy assistant public defender, for the appellant (defendant).

      Lisa C. Dumond, certified legal intern, with whom were Michele C. Lukban, senior assistant state’s attorney, and, on the brief, Jonathan C. Benedict, state’s attorney, and Nicholas J. Bove, Jr., senior assistant state’s attorney, for the appellee (state).
   Opinion

ROBINSON, J.

The defendant, Michael J. Marsala, appeals from the judgment of conviction, rendered after a jury trial, of criminal trespass in the first degree in violation of General Statutes § 53a-107 (a) (1). On appeal, the defendant claims that (1) there was insufficient evidence for the jury to find him guilty of criminal trespass in the first degree because the state failed to meet its burden of proof in regard to an element of the crime charged and (2) the court improperly instructed the jury on the definition of owner and authorized person under § 53a-107 (a) (1). We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The Trumbull Shopping Park (mall) is owned by Westfield Corporation (Westfield), an Australian based company. Wilham Davis is the operations manager of the mall. He testified that he “oversee[s] cleaning, security, maintenance and all the construction projects.” Ferenc Bozso is a security guard at the mall, who is overseen by Davis and who acts as Davis’ agent.

On December 12, 2006, Bozso was on duty at the mall. That day, Bozso received numerous complaints from patrons that the defendant was asking them for money on mall property. After verifying that the defendant matched the description given by the patrons, Bozso approached him and requested that the defendant provide his driver’s license. Bozso recorded the defendant’s license information onto a banning form and took a photograph of the defendant. Bozso testified that a banning form is distributed as a way of “revoking someone’s permission ... to be on private property . . . [and the mall] is a private property.” In this instance, the defendant was banned for one year, until December 12, 2007, for panhandling and soliciting on mall property. Bozso, using the courtesy code and the banning guidelines published by Westfield as reference, previously had issued about fifty to sixty banning forms. Individuals who are banned from the mall customarily are banned for a period of one year.

On October 8, 2007, Bozso saw the defendant at the mall in the food court. Bozso then went to his office to verify that the banning order was still in effect. Upon learning that it was, he notified the other security officers working at the mall of the defendant’s presence. Later that day, Bozso saw the defendant outside near the mall parking lot, still on mall property. After the defendant refused to provide identification, Bozso notified him that the Trumbull police department had been contacted. Shortly thereafter, William Ruscoe, a member of the Trumbull police department, arrived in response to a call of trespassing on mall property. Ruscoe placed the defendant under arrest. The defendant was charged with one count of criminal trespass in the first degree in violation of § 53a-107 (a) (1).

On March 5, 2008, after a two day trial, the jury found the defendant guilty of criminal trespass in the first degree. On March 10, 2008, defense counsel filed a motion for a judgment of acquittal, which was denied on March 18, 2008. On March 19, 2008, the court sentenced the defendant to a term of one year incarceration, execution suspended after sixty days, and one year probation. Additionally, the court imposed two special conditions of probation on the defendant: (1) that he refrain from entering the mall property and (2) that he refrain from “soliciting” during the period of probation. This appeal followed.

I

First, the defendant claims that there was insufficient evidence for the jury to have found him guilty of criminal trespass in the first degree because the state failed to prove beyond a reasonable doubt that Bozso had authority to ban him from the mall. Specifically, the defendant claims that Bozso’s authority to ban patrons from the mall came directly and solely from Westfield’s banning guidelines, which state that “[o]nly those individuals who have committed a crime at Westfield Shoppingtowns will be considered for banning and as in compliance with local, state and federal ordinances.” Additionally, the guidelines state that “[t]he Director of Security, Assistant Director of Security or Security Supervisor can only temporarily ban suspects for the remainder of the business day.” The defendant contends that because these guidelines defined the scope of Bozso’s agency for Davis, he was acting outside the scope of the agency when he banned the defendant for an entire year for panhandling on mall property, which is not a crime. In support of this contention, the defendant argues that although the guidelines provide that the Westfield general manager will review and investigate the ban and then send a certified letter to the banned subject with the status of the banning, Davis failed to do so. Rather, Davis did not learn of the defendant’s banning until October, 2007, which, the defendant asserts, further shows Bozso did not have Davis’ authority to act. We disagree.

Initially, we consider whether there was sufficient evidence to convict the defendant of criminal trespass in the first degree under § 53a-107 (a) (l). “The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part 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 [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.” (Internal quotation marks omitted.) State v. Hicks, 101 Conn. App. 16, 21, 919 A.2d 1052 (2007). “In evaluating evidence . . . [t]he trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . . because this court has held that a jury’s factual inferences that support a guilty verdict need only be reasonable.” (Internal quotation marks omitted.) State v. Mourning, 104 Conn. App. 262, 266-67, 934 A.2d 263, cert. denied, 285 Conn. 903, 938 A.2d 594 (2007).

There is sufficient evidence to support the inference that Bozso was a person authorized to ban the defendant from the mall because, as Davis’ agent, he had the implied authority from Davis to do so. “An agent’s authority may be actual or apparent. . . . Actual authority may be express or implied. . . . Implied authority is actual authority circumstantially proved. It is the authority which the principal intended his agent to possess. . . . Implied authority is a fact to be proven by deductions or inferences from the manifestations of consent of the principal and from the acts of the principal and [the] agent.” (Citations omitted; internal quotation marks omitted.) Gordon v. Tobias, 262 Conn. 844, 849-50, 817 A.2d 683 (2003). Similarly, in general, the issue of intent is a question of fact “often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom.” (Internal quotation marks omitted.) State v. Silva, 285 Conn. 447, 460, 939 A.2d 581 (2008).

The evidence demonstrated that Bozso previously had banned patrons fifty to sixty times for the duration of a year, for violating the courtesy code, without consequence from Davis. Furthermore, Davis’ testimony indicated that he considered the security guards to be his agents. The evidence supports the jury’s finding that the banning guidelines are suggestions rather than mandatory procedures that the security guards must follow, and, therefore, Bozso’s authority extends beyond what they expressly provide. Though the record does not indicate whether Davis specifically knew of the prior bannings, an “agent’s authority is a question of fact for the trier where the evidence is conflicting or where there are several reasonable inferences which can be drawn.” (Internal quotation marks omitted.) Maharishi School of Vedic Sciences, Inc. (Connecticut) v. Connecticut Constitution Associates Ltd. Partnership, 260 Conn. 598, 606, 799 A.2d 1027 (2002). It was not unreasonable for the jury to infer that Davis’ failure to take any action regarding such bannings or to change mall policy following such bannings was a manifestation of his intent that Bozso exercise such authority.

Additionally, the defendant’s ban, although longer than suggested in the guidelines, is aligned with the overall purpose of the security guards to keep the peace at the mall, which supports the inference that Bozso had the implied authority to act. See State v. Vlasak, 52 Conn. App. 310, 317-18, 726 A.2d 648 (1999) (police held to have authority as agents where general purpose of police presence was to keep trespassers off private property), appeal dismissed, 252 Conn. 228, 746 A.2d 742 (2000). This court has found that when the agent’s act is in the interest of the principal, it is likely that he has implied authority to act. See Hudson United Bank v. Cinnamon Ridge Corp., 81 Conn. App. 557, 576, 845 A.2d 417 (2004) (agent had authority to represent principal at real estate closing because principal had interest in wanting to complete valuable deal). It was reasonable for the jury to infer that Bozso was acting in Davis’ interest by ordering the defendant to leave the mall in response to complaints from patrons and, consequently, with his authority. Accordingly, we conclude that the evidence was sufficient to sustain the conviction of criminal trespass in the first degree.

II

The defendant next claims, in regard to the final element of the crime of trespass in the first degree, that the court improperly instructed the jury as to the definitions of owner and authorized person. The court instructed the jury that the term “[ojwner, here, does not necessarily mean the person who actually owns the title to the building in question; it includes any person who is in rightful possession of the premises in question” and that “an authorized person also includes any person issuing an order to leave, which is at the request of the person in rightful possession.” The defendant argues that the state did not offer any evidence tending to prove that Bozso was in rightful possession of the mall, making the language “in rightful possession” inapplicable to the case at issue and consequently misleading to the jury. The defendant also argues that the instruction suggests that an authorized person simply is someone who has been issued an order at the request of the owner, but, realistically, the issue of authority requires a more intricate analysis, and, therefore, the instruction was improper. We disagree.

“When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper. ... In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) State v. Heinemann, 282 Conn. 281, 300, 920 A.2d 278 (2007).

The jury instructions did not mislead the jury so as to cause injustice to the defendant. This court has found that “[t]he word owner is one of flexible meaning, and it varies from an absolute proprietary interest to a mere possessory right. . . . It is not a technical term and, thus, is not confined to a person who has the absolute right in a chattel, but also applies to a person who has possession and control thereof.” (Internal quotation marks omitted.) State v. LoSacco, 12 Conn. App. 172, 177, 529 A.2d 1348 (1987). The definition of the word “owner” given by the court in the jury charge was consistent with precedent from this court. Further, the description of an authorized person as one who has been issued an order at the request of an owner was taken directly from D. Borden & L. Orland, 5A Connecticut Practice Series: Criminal Jury Instructions (4th Ed. 2007) § 12.3, p. 327, which simplifies the issue of authority but still retains the general idea that authority is a power conveyed from the principal to the agent, and did not prejudice the defendant. The court, therefore, did not improperly instruct the jury as to the definitions of the terms included in § 53a-107 (a) (1).

The judgment is affirmed.

In this opinion the other judges concurred.

       The courtesy code, published by Westfield, is a list of fourteen types of conduct or activities that are prohibited at the mall. Bozso testified that the security guards carry this code with them and use it as a reference to determine when patrons should be banned from the mall.

       The banning guidelines are two documents published by Westfield that provide a process for banning a patron from the mall. The first document delineates a seven step process, and the second document is a chart recommending how long a patron should be banned for each of a list of various crimes and incidents.

       Although Westfield’s banning guidelines provide that security guards should present documentation of a banning to the general manager for investigation, both parties refer, at trial and in their briefs, to Davis, the operations manager, as the person with this type of supervisory power.

       General Statutes § 53a-107 (a) provides in relevant part: “A person is guilty of criminal trespass in the first degree when: (1) Knowing that such person is not licensed or privileged to do so, such person enters or remains in a building or any other premises after an order to leave or not to enter personally communicated to such person by the owner of the premises or other authorized person . . .

       “In order properly to preserve for appeal a claimed error in the trial court’s charge to the jury, a party must take an exception when the charge is given that distinctly states the objection and the grounds therefor.” State v. Miller, 186 Conn. 654, 657, 443 A.2d 906 (1982). The defendant requested that the court give an alternate jury charge that did not include the definition of owner as one who “is in rightful possession [of] the premises in question,” and that authorized person be defined as “a person having the authority granted by the owner to issue such an order.” After the court refused the requests, the defendant renewed his objection in regard to the definition of owner and authorized person. We therefore review this claim.

       These definitions are in reference to the statutory language of § 53a-107 (a) (1). See footnote 4.


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    GEORGINA SPILKE v. KENNETH C. SPILKE
    (AC 29223)
    Bishop, DiPentima and Foti, Js.
    Argued May 26
    officially released August 25, 2009

      Georgina Spilke, pro se, the appellant (plaintiff).

      William B. Wynne, with whom, on the brief, was Joseph M. Wicklow III, for the appellee (defendant).
   Opinion

FOTI, J.

The plaintiff, Georgina Spilke, appeals from the judgment of the trial court denying her motion for contempt and to open and to vacate the judgment dissolving her marriage to the defendant, Kenneth C. Spilke. In her postjudgment motion, the plaintiff alleged that the defendant fraudulently misrepresented certain information on the financial affidavits that he submitted prior to and at the time of the dissolution. On appeal, she claims that the court abused its discretion in denying her motion because she presented evidence of fraud sufficient to open the judgment. We affirm the judgment of the trial court.

The following factual and procedural history is relevant to our resolution of the plaintiffs claim. On July 30, 2003, the parties’ marriage was dissolved after an uncontested hearing before the court, Gruendel, J. At that time, a separation agreement entered into by the parties was incorporated into the judgment of dissolution. Under that agreement’s terms, the parties waived alimony, and the defendant agreed to pay the plaintiff a lump sum settlement of $185,000 by August 13, 2003. Prior to the dissolution of the parties’ marriage, and as part of the settlement negotiations, the defendant provided the plaintiff with a sworn financial affidavit dated June 5,2003. That original financial affidavit (original affidavit), although bearing the same date, differed from the second financial affidavit (second affidavit) submitted to the court by the defendant on July 30, 2003. The differences between the two documents were found in their respective “liabilities” sections.

In the original affidavit, the liabilities were set out on the second page under columns labeled: “Creditor,” “Balance Due,” “Date Debt Incurred” and “Weekly Payment.” The only liability listed in the original affidavit was set out as “[InternalRevenue Service] (See attached Schedule A)”; however, no schedule A was attached to the affidavit. In the second affidavit, the same columns appeared on the page listing the defendant’s liabilities. There were, however, two additional listings as well as no reference to a schedule A, although the Internal Revenue Service liability was still listed. The two additional liabilities listed were: “KILM, [Inc.] v. Spilke,” with a balance due of $165,000 and “Co-Op Fees to University Towers,” with a balance due of $33,000.

Both the original and the second affidavit also Usted the defendant’s assets. The defendant’s assets and the figures pertaining to their value were identical on the two affidavits. Each affidavit listed various articles of personal property as assets, including a used car, household furnishings, computer and printing equipment and cameras that were valued in total at $8000. The affidavits also included the sources and amount of the defendant’s income. The figures relating to the defendant’s income and its sources were also identical in both the original and the second affidavit. The sources and amounts of income were listed on each affidavit as follows: estimated gross weekly wage from employment of $960 with weekly deductions of $25 for exhibit costs and $50 for printing costs with a net wage of $885. There was no other source of income listed on either affidavit. The defendant’s mother, however, annually deposited funds of approximately $50,000 into an account set up in both her name and the defendant’s name, from which the defendant would make withdrawals. The defendant did not Ust this recurring gift in either financial affidavit as a source of income or as an asset. It was on the basis of the purported financial status of the defendant, in part, that the negotiated settlement of the parties was entered into and, subsequently, incorporated into the judgment of dissolution on July 30, 2003.

On July 27, 2005, the plaintiff filed a motion for contempt and to open and to vacate the judgment of dissolution because of fraud.* *** In that motion, she asserted that the defendant had made fraudulent misrepresentations on his financial affidavits, that his attorney had made various fraudulent misrepresentations to her during a pretrial hearing before Judge Gruendel that was held on July 28, 2003, and that the defendant had hidden income and assets through a business and personal relationship with his subsequent spouse. After the plaintiff filed a motion seeking extensive discovery, the court, Frazzini, J., over a span of thirteen days between October, 2005, and May, 2007, pursuant to Oneglia v. Oneglia, 14 Conn. App. 267, 540 A.2d 713 (1988), held a hearing to determine whether there was sufficient basis to open the judgment for the limited purpose of proceeding with discovery on the plaintiffs claim of fraud. The court heard testimony from both parties, the defendant’s attorney, an investigator retained by the plaintiff and a friend of the plaintiff. The court also allowed the parties to introduce exhibits and, by stipulation of the parties, considered the evidence submitted previously to the court on the defendant’s postjudgment motion for contempt. See footnote 5. By memorandum of decision filed July 18, 2007, the court denied the plaintiffs motion, stating that “the judgment will not now be opened for the purpose of discovery or vacated for the purpose of a new trial.” This appeal followed. Further facts will be set forth as necessary.

“Our review of a court’s denial of a motion to open [based on fraud] is well settled. We do not undertake a plenary review of the merits of a decision of the trial court ... to deny a motion to open a judgment. . . . In an appeal from a denial of a motion to open a judgment, our review is limited to the issue of whether the trial court has acted unreasonably and in clear abuse of its discretion. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. . . . The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did.” (Citations omitted; internal quotation marks omitted.) Pospisil v. Pospisil, 59 Conn. App. 446, 449, 757 A.2d 655, cert. denied, 254 Conn. 940, 761 A.2d 762 (2000).

“Fraud consists in deception practiced in order to induce another to part with property or surrender some legal right, and which accomplishes the end designed. . . . The elements of a fraud action are: (1) a false representation was made as a statement of fact; (2) the statement was untrue and known to be so by its maker; (3) the statement was made with the intent of inducing reliance thereon; and (4) the other party relied on the statement to his detriment. ... A marital judgment based upon a stipulation may be opened if the stipulation, and thus the judgment, was obtained by fraud. ... A court’s determinations as to the elements of fraud are findings of fact that we will not disturb unless they are clearly erroneous. . . . There are three limitations on a court’s ability to grant relief from a dissolution judgment secured by fraud: (1) there must have been no laches or unreasonable delay by the injured party after the fraud was discovered; (2) there must be clear proof of the fraud; and (3) there is a substantial likelihood that the result of the new trial will be different.” (Citations omitted; internal quotation marks omitted.) Mattson v. Mattson, 74 Conn. App. 242, 245-46, 811 A.2d 256 (2002). Moreover, our Supreme Court has stated that marital dissolution “cases have uniformly emphasized the need for full and frank disclosure in [a financial] affidavit. A court is entitled to rely upon the truth and accuracy of sworn statements . . . and a misrepresentation of assets and income is a serious and intolerable dereliction on the part of the affiant which goes to the very heart of the judicial proceeding. . . . These sworn statements have great significance in domestic disputes in that they serve to facilitate the process and avoid the necessity of testimony in public by persons still married to each other regarding the circumstances of their formerly private existence.” (Citation omitted; internal quotation marks omitted.) Billington v. Billington, 220 Conn. 212, 219-20, 595 A.2d 1377 (1991).

First, the plaintiff argues that the court improperly found that she had failed to establish probable cause; see footnote 6; and that she reasonably relied on the defendant’s fraudulent misrepresentation of his liabilities, and, therefore, the court abused its discretion in denying her motion to open and to vacate the dissolution judgment on that ground. Specifically, the plaintiff claims that the defendant and his attorney, by omitting the mortgage and co-op fees from the original affidavit, fraudulently concealed those liabilities from her. At the hearing on her motion to open and to vacate the judgment, the plaintiff testified that had she been made aware of those liabilities, she would have purchased the mortgage and pursued the defendant’s liability on it. The court found the plaintiffs testimony not credible.

The court stated that the plaintiff had established that the original affidavit did contain factual errors in its omission of the mortgage and co-op fee liabilities. The court concluded, however, that the record clearly indicated that she “was fully aware of the true state of affairs.” The court reviewed the transcript of the July 28, 2003 pretrial hearing that was held before Judge Gruendel and found that “[b]y the end of [that hearing], the defendant’s attorney had fully disclosed to the court, in the plaintiffs presence, the mortgage balance of approximately $175,000, the mortgage holder’s willingness to compromise that claim and accept the lesser amount of $15,000 to satisfy the mortgage debt and the potential liability that the defendant might owe on the unpaid co-op fees.” (Emphasis added.) Moreover, the court found that the record revealed that the plaintiff was a party to the mortgage foreclosure action and, therefore, had independent knowledge of the debt, as well as the holder’s willingness to accept $15,000 in satisfaction of that debt and the co-op fee liability. As a result, the court concluded, there was no likelihood that the plaintiff actually and reasonably relied on the omission in the defendant’s original affidavit. The court, therefore, denied the plaintiffs motion to open and to vacate the dissolution judgment on this ground. We also note that by rejecting the plaintiffs testimony concerning the mortgage and co-op fee liability, the court made a credibility determination, which we will not disturb on appeal. See Billington v. Billington, 27 Conn. App. 466, 469, 606 A.2d 737 (contours of determination of credibility uniquely shaped by trial court and not reviewable on appeal), cert. denied, 224 Conn. 906, 615 A.2d 1047 (1992). Moreover, our review of the record indicates that the court did not abuse its discretion in refusing to open the judgment on this purported ground of fraud.

The plaintiff also claims that the defendant misrepresented the amount and sources of his income and assets on both the original and the second affidavits. This claim involves the defendant’s purported income and the recurring gifts of money received by the defendant from his mother by way of a joint account, the fact of which was not stated expressly on either affidavit. This claim fails for much the same reason as the plaintiffs previous claim. At the July 28,2003 hearing before Judge Gruendel, the defendant’s attorney, again, in the plaintiffs presence, indicated that the source of the purported $960 weekly gross income was a recurring gift of money from the defendant’s mother. During her testimony before the court on her motion to open and to vacate the judgment, the plaintiff testified that when she heard the defendant’s attorney state that the defendant’s income derived from his mother’s gifts, she realized that this income might be the source of the income listed on the original affidavit. She further testified that she made a tactical decision not to pursue further discovery on the matter. The court concluded that the evidence, including the plaintiffs testimony during the hearing on the motion, established that the plaintiff had in no way relied on either the purported inaccuracies in the affidavits or the representations of the defendant’s attorney at the pretrial hearing and, therefore, she had failed to establish a required element of fraud. On the basis of our review of the record, we conclude that the court in making this determination did not abuse its discretion.

Last, the plaintiff claims that the defendant hid assets and income through his personal and business relationship with Jennifer Ballard. The following additional facts are relevant to the plaintiffs claim. In the late 1980s, the defendant went to Israel, leaving the plaintiff to care for their three children. Subsequently, he obtained an annulment of his marriage to the plaintiff and began a relationship with Ballard, eventually marrying her in a civil ceremony in Israel. The defendant worked as a photographer and artist and operated a greeting card business. A portion of the greeting card business involved the production of collaborative artworks with Ballard. In the late 1990s, the couple decided to return to the United States. The defendant testified at the hearing to open and to vacate the judgment, that to induce Ballard into leaving her position as a teacher in Israel and, therefore, to lose her pension, he gave her all of his art inventory except for the negatives and digital copies of his photographs and agreed to help her to start a business called Bezalel-Levy, LLC. After their arrival in the United States, Ballard and the defendant continued to collaborate on artwork, as well as produce artworks independently, and offered them for sale on the new business’ Internet site. Ballard received all the proceeds from the sales of the artworks by the business.

The defendant did not list any interest in any artwork in his original or his second affidavit. During his testimony at the healing on the motion to open and to vacate the judgment, the defendant acknowledged that at the time of the dissolution, he still owned the negatives and digital copies of his photographs as well as a one-half interest in approximately 100 pieces of artwork he collaborated on with Ballard since 1999. He further testified that he did not list them on either financial affidavit because he believed that they had no value, as he had not been successful in selling his art. He, however, admitted that he should have listed them at avalué between $15,000 and $20,000 in total on the basis of his estimate as to their worth if he was successful in selling them.

The court concluded that the evidence did establish by probable cause the first three elements of fraud on the part of the defendant. See Mattson v. Mattson, supra, 74 Conn. App. 245. On the basis of the plaintiffs testimony at the hearing on her motion to open and to vacate the judgment, among other things, the court concluded that the evidence also established that the plaintiff did not, in fact, rely on the defendant’s affidavits or his attorney’s statements regarding his income, assets or liabilities. The plaintiff testified that, after the July 28, 2003 pretrial hearing, she could not believe anything that the defendant or his attorney represented about his income and assets. Moreover, she testified that because of her purported inability to trust the financial disclosures presented to her, she considered abandoning settlement negotiations and proceeding to trial on the matter. She, however, made the strategic decision to forgo further investigation or trial and to settle the case. That decision was based on several factors, including her fear that had she proceeded to trial, the defendant would have declared bankruptcy. She also was motivated by the worry that, if she proceeded to trial, the court might conclude that the Israeli annulment was valid. The plaintiff testified that another concern that motivated her decision was the potential effect that a full trial might have on one of the parties’ sons. Under these circumstances, we cannot say that the court improperly concluded that the plaintiff had failed to establish the element of reliance and, therefore, abused its discretion in denying her motion to open and to vacate the judgment of dissolution. We conclude that, because the plaintiff was unable to meet the minimal evidentiary threshold of establishing her allegations of fraud beyond a mere suspicion, the court’s ruling was proper. See id., 248; Oneglia v. Oneglia, supra, 14 Conn. App. 269.

The judgment is affirmed.

In this opinion the other judges concurred.

       Neither affidavit listed a dollar amount regarding the Internal Revenue Service liability.

       According to the defendant, this debt stemmed from a mortgage foreclosure action that was then pending against both parties on a mortgage note from a loan that the defendant had taken in 1986 to purchase a condominium unit at University Towers in New Haven.

       According to the defendant, this debt was claimed by the University Towers condominium association for unpaid co-op fees.

       The defendant is an artist and photographer.

       Although the motion was filed more than four months from the date of dissolution; see Practice Book § 17-4 (a); a trial court has inherent power to determine if fraud exists. See Weinstein v. Weinstein, 275 Conn. 671, 708, 882 A.2d 53 (2005).
      The plaintiffs motion was entitled “Motion for Contempt—Post judgment—Motion to Vacate Divorce Judgment Agreement Dated July 30,2003.” The court noted that “[tjhe text of the motion specifies that the plaintiff seeks a finding of contempt against the defendant and his attorney because of the defendant’s having filed and pursued his motion for contempt . . . .” The record reveals that the defendant, on October 27, 2004, filed a motion for contempt, the substance of which is not pertinent to this appeal. That motion was denied by the court in a memorandum of decision filed October 14, 2005. The court also denied the plaintiffs motion insofar as it related to contempt, concluding that the defendant had legitimate reasons for pursuing his motion for contempt. The plaintiff did not appeal from that decision.

       This court has expressly rejected the premise that “a patty seeking to open a judgment of dissolution on the basis of allegations of fraud has a right to conduct discovery based only on its filing of a motion to open. Oneglia v. Oneglia, [supra, 14 Conn. App. 269]. As we explained, [t]his is clearly an incorrect premise; until the court acts on a motion to open, the earlier judgment is still intact and neither our rules of practice nor our statutes provide for such a thing as postjudgment discovery. ... If the [party seeking to open the judgment] was able to substantiate [his] allegations of fraud beyond mere suspicion, then the court would open the judgment for the limited purpose of discovery, and would later issue an ultimate decision on the motion to open after discovery had been completed and another hearing held.” (Internal quotation marks omitted.) Mattson v. Mattson, 74 Conn. App. 242, 247-48, 811 A.2d 256 (2002); see also Nolan v. Nolan, 76 Conn. App. 583, 585, 821 A.2d 772 (2003) (court conducted postjudgment probable cause hearing to determine whether any discovery, beyond parties’ testimony, should be allowed in future to substantiate party’s allegations of fraud).
      Last, we note that a “hearing in probable cause is not intended to be a full scale trial on the merits of the [moving party’s] claim. The [moving party] does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim. . . . The court’s role in such a hearing is to determine probable success by weighing probabilities. . . . The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it. . . . Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false.” (Citation omitted; internal quotation marks omitted.) Malave v. Ortiz, 114 Conn. App. 414, 426, 970 A.2d 743 (2009).

       Ballard went by the Hebrew name Yona Levy as well.

       Although we are affirming the decision of the court, we nonetheless do not condone the defendant’s admitted misrepresentation of financial information by the omission of these assets in sworn affidavits submitted to the plaintiff and to the court. We cannot overemphasize the importance of the representations made in financial affidavits by parties to a dispute before a court not only to the resolution of the matter at hand, but to the entire judicial process. Billington v. Billington, supra, 220 Conn. 219-20.


author: GRUENDEL, J.

text:
    STATE OF CONNECTICUT v. JUAN EASON
    (AC 30420)
    Flynn, C. J., and Graendel and Haiper, Js.
    Argued May 19
    officially released August 25, 2009

      Richard W. Callahan, special public defender, for the appellant (defendant).

      Rocco A. Chiarenza, special deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly and GailP. Hardy, state’s attorneys, for the appellee (state).
   Opinion

GRUENDEL, J.

The defendant, Juan Eason, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a. On appeal, the defendant claims that the trial court improperly (1) assumed the role of advocate on behalf of the state and (2) failed to consider, sua sponte, whether certain photographs admitted into evidence should have been cropped to excise allegedly prejudicial images contained therein, as a matter of due process. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant and the victim, Robin Wilcox, were involved in a periodic relationship for approximately eight years. Throughout their relationship, the defendant lived at the victim’s apartment in Waterbury along with two of the victim’s children and her granddaughter. Upon learning of the defendant’s affair with her sister, the victim ended her relationship with the defendant, and he moved out of the apartment.

Approximately three weeks later, the victim agreed to help the defendant move from Waterbury to Middle-town. After meeting, they drove together in the victim’s minivan to pick up the defendant’s nephew, who also had agreed to help the defendant in his move. Unable to reach the nephew on his cellular telephone, the defendant and the victim parked in the vicinity of the nephew’s home. While waiting, the defendant’s affair with the victim’s sister came up in conversation, and an argument ensued. At that moment, the defendant “just lost it” and strangled the victim to death.

Despite the defendant’s belief that the victim was dead, he failed to notify anyone of her condition. Instead, the defendant moved the victim’s body to the rear of the minivan, wrapped it in a blanket and placed T-shirts over the victim’s face and feet. With the deceased victim in the back of the minivan, the defendant drove to the victim’s apartment in search of a change of clothes, withdrew $500 from the victim’s bank account, using her automatic teller machine card, and purchased a carton of cigarettes from a store and crack cocaine from someone on a street comer. The defendant then parked the minivan on a street where he believed that no one would discover the victim. Four days later, however, the police found the minivan with the victim’s decomposing body inside. The defendant was apprehended that same day. A jury trial followed, at the conclusion of which the jury found the defendant guilty of murder, and the court rendered judgment accordingly. From that judgment, the defendant appeals.

I

The defendant first claims that the court improperly cast itself into the role of advocate on behalf of the state, thereby depriving him of his constitutional right to due process and a fair trial. Specifically, the defendant alleges that after the court determined that certain autopsy photographs lacked relevance for identification purposes, it improperly suggested that such evidence was relevant as to cause of death. Having failed to object to such matters at trial, the defendant claims that he is entitled to relief pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We disagree.

To prevail on his unpreserved constitutional claim, the defendant must satisfy all four conditions set forth in Golding. He must show that “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id. Failure to satisfy any of the four conditions will cause the defendant’s claim to fail. Id., 240. “The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” Id. Our analysis in the present case centers on Golding’s third prong.

Before addressing the allegations made by the defendant, we “recite certain well established principles regarding the responsibilities of the trial judge in conducting a criminal trial.” (Internal quotation marks omitted.) State v. Harris, 28 Conn. App. 474, 478, 612 A.2d 123, cert. denied, 223 Conn. 926, 614 A.2d 828 (1992). In particular, “ [d]ue process requires that a criminal defendant be given a fair trial before an impartial judge and unprejudiced jury in an atmosphere of judicial calm.” (Internal quotation marks omitted.) State v. Colon, 272 Conn. 106, 362, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005). In a criminal trial, the judge is not simply a moderator of the proceedings. State v. Pharr, 44 Conn. App. 561, 568, 691 A.2d 1081 (1997). Rather, it is the responsibility of the judge to ensure that the trial is “conducted in a manner which approaches an atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding.” (Internal quotation marks omitted.) State v. Peloso, 109 Conn. App. 477, 489, 952 A.2d 825 (2008). In so doing, the function of the judge “is neither that of automaton nor advocate . . . .” (Citation omitted; internal quotation marks omitted.) State v. Fernandez, 198 Conn. 1, 10, 501 A.2d 1195 (1985). The judge is not merely an “umpire in a forensic encounter”; (internal quotation marks omitted) Cameron v. Cameron, 187 Conn. 163, 169, 444 A.2d 915 (1982); but, rather, “a minister of justice . . . [who] should be cautious and circumspect in his language and conduct”; (citations omitted; internal quotation marks omitted) id.; in whatever he does.

The judge “should never assume a position of advocacy, real or apparent, in a case before [him or her], and should avoid any displays of hostility or skepticism toward the defendant’s case, or of approbation for the prosecution’s.” (Internal quotation marks omitted.) State v. Pharr, supra, 44 Conn. App. 570. Although the judge should not hesitate to intervene when matters warrant, he or she “should avoid trying the case for the lawyers.” (Internal quotation marks omitted.) State v. Fernandez, supra, 198 Conn. 11; State v. Peloso, supra, 109 Conn. App. 492; see also United States v. Marzano, 149 F.2d 923, 926 (2d Cir. 1945) (Hand, J.) (“[prosecution and judgment are two quite separate functions in the administration of justice; they must not merge”). If the judge chooses to intervene in a criminal trial, such intervention must “reach a significant extent and be adverse to the defendant to a substantial degree” before risking impaired functioning of the finder of fact or the appearance of an impartial judge. (Internal quotation marks omitted.) State v. Peloso, supra, 491. The judge’s intervention, however, may be necessary to bring out facts needed to resolve a doubt that he or she apparently had with regard to the admissibility of certain evidence. See Hutchinson v. Plante, 175 Conn. 1, 3, 392 A.2d 488 (1978).

In considering a judge’s intervention, our Supreme Court has observed that “[t]he influence of the trial judge on the jury is necessarily and properly of great weight . . . .” (Internal quotation marks omitted.) State v. Hernandez, 218 Conn. 458, 462, 590 A.2d 112 (1991). The jury is ever watchful of the judge’s words; State v. Cox, 50 Conn. App. 175, 182, 718 A.2d 60 (1998), aff'd, 251 Conn. 54, 738 A.2d 652 (1999); and has “a natural tendency to look to the trial judge for guidance, and may find it even where it is not intended.” (Internal quotation marks omitted.) State v. Fernandez, supra, 198 Conn. 12. It follows that “[t]he judge’s attitude and the result he supposedly desires may be inferred by the jury from a look, a lifted eyebrow [or] an inflection of the voice . . . .” (Internal quotation marks omitted.) Id. For this reason, the judge must avoid taking a position of advocacy that “may bear the seeds of tilting the balance against the accused and place the judge in the eyes of some jurors, on the side of the prosecution.” (Internal quotation marks omitted.) State v. Delarosa, 16 Conn. App. 18, 29, 547 A.2d 47 (1988).

In the present case, the jury was excused from the courtroom before the judge engaged in the colloquy that the defendant asserts crossed the line of impartiality as he considered the admissibility of certain autopsy photographs. Unless the jury was made aware of the colloquy between the judge and the parties during that time, it is factually impossible for the jury to have been prejudiced by actions of the trial judge to which it was not made witness. See State v. Pharr, supra, 44 Conn. App. 570-71 (noting jury may be improperly guided by actions of judge it observes); see also State v. Fernandez, supra, 198 Conn. 12 (same); cf. State v. Peloso, supra, 109 Conn. App. 493 (when judge and fact finder one and the same, any appearance of partiality in corut’s conduct carried less danger of prejudicing defendant than it would have injury trial). There is no indication that the jury was made aware of the actual events that transpired after it had been excused.

Even if we assume that the autopsy photographs were admitted into evidence as a result of improper judicial advocacy, their admission was harmless beyond a reasonable doubt. “Any claim that the trial judge crossed the line between impartiality and advocacy is subject to harmless error analysis. . . . The inquiry for identifying harmless constitutional error is whether the error was harmless beyond a reasonable doubt.” (Citation omitted; internal quotation marks omitted.) State v. Peloso, supra, 109 Conn. App. 493. As our Supreme Court has noted, “when there is independent overwhelming evidence of guilt, a constitutional error would be rendered harmless beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Hoeplinger, 206 Conn. 278, 295, 537 A.2d 1010 (1988). “The proper standard is whether any reasonable jury would have found the defendant guilty if the improperly admitted evidence had been excluded.” Id., 296.

In the present case, there was overwhelming evidence of the defendant’s guilt independent of the autopsy photographs. Specifically, the court received into evidence other autopsy photographs, some of which depicted both the victim’s face and neck. Additionally, the court heard testimony from the physician who performed the autopsy concerning the victim’s cause of death, injury and hemorrhaging within the neck. Finally, and perhaps most significantly, the court received into evidence the defendant’s written confession in which he admitted to choking the victim until she lost consciousness. See State v. Davis, 109 Conn. App. 187, 198, 951 A.2d 31 (sufficiently corroborated confession generally constitutes overwhelming evidence rendering errors at trial harmless), cert. denied, 289 Conn. 929, 958 A.2d 160 (2008); State v. Iban C., 275 Conn. 624, 645, 881 A.2d 1005 (2005) (same). Any error, therefore, was harmless beyond a reasonable doubt.

II

The defendant next argues that, upon his objection that certain autopsy photographs, including some depicting the victim’s unclad body, were prejudicial and irrelevant, the court should have sua sponte considered whether these photographs could have been cropped to excise the allegedly inflammatory images contained therein. Specifically, the defendant asserts that the allegedly prejudicial and irrelevant portions of these photographs were not so inescapably bound with a prejudicial but relevant portion, the victim’s neck, to prevent their redaction. Having failed to present this argument to the trial court, the defendant claims that he is entitled to relief under Golding. Again, we disagree.

It is well established that “a trial court has broad discretion in weighing the potential prejudicial effect of a photograph against its probative value.” (Internal quotation marks omitted.) State v. Satchwell, 244 Conn. 547, 575, 710 A.2d 1348 (1998). As such, “[a] potentially inflammatory photograph may be admitted if the court, in its discretion, determines that the probative value of the photograph outweighs the prejudicial effect it might have on the jury.” (Internal quotation marks omitted.) Id. It also is well established that “the admissibility of evidence is a matter of state law and unless there is a resultant denial of fundamental fairness or the denial of a specific constitutional right, no constitutional issue is involved.” (Internal quotation marks omitted.) State v. Walker, 215 Conn. 1, 5, 574 A.2d 188 (1990); see State v. Periere, 186 Conn. 599, 611, 442 A.2d 1345 (1982). Our Supreme Court repeatedly has held that “a nonconstitutional claim cannot be transformed into a constitutional claim simply by virtue of the label placed upon it by a party.” (Internal quotation marks omitted.) State v. King, 249 Conn. 645, 680 n.39, 735 A.2d 267 (1999); see State v. Taylor, 239 Conn. 481, 502-503, 687 A.2d 489 (1996) (“it would trivialize the constitution to transmute a nonconstitutional claim into a constitutional claim simply because of the label placed on it by a party” [internal quotation marks omitted]), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997). Accordingly, “evidentiary claims are not of constitutional magnitude and . . . thus fail under Golding's second prong.” State v. Spiegelmann, 81 Conn. App. 441, 447, 840 A.2d 69, cert. denied, 268 Conn. 921, 846 A.2d 882 (2004).

We take particular note of the defendant’s failure to present any authority from any jurisdiction, state or federal, in support of his claim. See State v. Vilalastra, 207 Conn. 35, 46-47, 540 A.2d 42 (1988) (“[t]he defendant has failed to cite a single case from any jurisdiction in which a court has held that the erroneous admission of expert testimony concerning an ultimate fact implicates fundamental fairness or constitutes the violation of a specific constitutional right”). Instead, he contends that because advances in computer technology allow for cropping with little effort or cost, the court should have, on its own initiative, determined that such photographs should have been cropped. According to the defendant, it follows that the court’s failure to do so violated his constitutional right to due process. It is clear, however, that the defendant “has put a constitutional tag on a nonconstitutional evidentiary ruling.” (Internal quotation marks omitted.) State v. Walker, supra, 215 Conn. 5. It was entirely within the court’s broad discretion to admit the photographs into evidence. State v. Satchwell, supra, 244 Conn. 575. Despite being made aware of the allegedly prejudicial and irrelevant images contained within the photographs through the defendant’s objection, the court determined that the probative value of the photographs outweighed any prejudicial effect they might have carried. In making this determination, the court was not required to consider whether such allegedly inflammatory images could have been removed from the photographs. We refuse to place such an obligation on the courts. The defendant’s claim is not of constitutional magnitude and fails under Golding's second prong.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although we are not focusing attention on Golding’s second prong, we note that a trial court’s improper advocacy on behalf of a party is generally an issue of constitutional magnitude. See State v. Robertson, 254 Conn. 739, 768-76, 760 A.2d 82 (2000).

       In addition, the defendant asks us to exercise our supervisory powers over this claim. “Appellate courts possess an inherent supervisory authority over the administration of justice. . . . Supervisory powers are exercised to direct trial courts to adopt judicial procedures that will address matters that are of the utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole.” (Internal quotation marks omitted.) State v. Ouellette, 271 Conn. 740, 762 n.28, 859 A.2d 907 (2004). We decline the defendant’s invitation.


text:
    JULIA NICEFARO v. CITY OF NEW HAVEN
    (AC 29851)
    DiPentima, Gruendel and Pellegrino, Js.

      Argued April 23
    officially released August 25, 2009

      Audrey C. Kramer, assistant corporation counsel, with whom, on the brief, was Michael Fenton, certified legal intern, for the appellant (defendant).

      Brenden P. Leydon, with whom, on the brief, was Anthony S. Bonadies, for the appellee (plaintiff).
   Opinion

GRUENDEL, J.

The defendant, the city of New Haven, appeals from the judgment of the trial court rendered in favor of the plaintiff, Julia Nicefaro, in this trip and fall action. The defendant challenges as clearly erroneous the court’s findings that (1) the defendant had constructive notice of the defect at issue and (2) the plaintiff was not contributorily negligent. We affirm the judgment of the trial court.

On March 1,2004, at approximately 11 a.m., the plaintiff was walking on the easterly side of Orange Street in New Haven when she tripped on a metal grate, causing her to fall to the ground and sustain physical injury. As the court found in its memorandum of decision: “At a point in [the] sidewalk near Orange Street’s intersection with Chapel Street, the sidewalk narrows because of a tree planted within the sidewalk’s boundary, which tree is surrounded by a metal grate, which, over time has risen, creating a tripping hazard to persons walking on [the] sidewalk. The plaintiffs exhibit three is the complaint form of the city of New Haven, department of public works, and, under ‘Description of Problem,’ states [that] ‘on [March 1, 2004 at] 11:00 a.m. at the raised decorative metal tree grate . . . [the plaintiff] fell on unevenness and raised metal grate in sidewalk.’ The plaintiff, an elderly lady, testified that she was a cancer survivor and diabetic and was walking at the side of her husband toward the Giamo Building to obtain tax forms for the filing of their tax return; that she was in good health but experienced nearsightedness requiring that she wear glasses. She was walking on the side of her husband closest to the street. The plaintiffs exhibit four shows that the tree and grate installation occupies approximately 50 percent of the sidewalk’s width, thereby significantly reducing the walking area for a pedestrian approaching.”

The plaintiff subsequently commenced a civil action pursuant to General Statutes § 13a-149, commonly referred to as the municipal highway defect statute. See McIntosh v. Sullivan, 274 Conn. 262, 266 n.4, 875 A.2d 459 (2005). A court trial followed, at the conclusion of which the court found in favor of the plaintiff and rendered judgment accordingly. From that judgment, the defendant appeals.

In enacting § 13a-149, our legislature “imposed a penalty upon the municipality, measured by the actual injury caused by its disobedience of the statute, and enforceable by the person injured through an action on the statute . . . .” Frechette v. New Haven, 104 Conn. 83, 87, 132 A. 467 (1926). To recover under § 13a-149, a plaintiff “must prove, by a fair preponderance of the evidence, (1) that the highway was defective as claimed; (2) that the defendant actually knew of the particular defect or that, in the exercise of its supervision of highways in the city, it should have known of that defect; (3) that the defendant, having actual or constructive knowledge of this defect, failed to remedy it having had a reasonable time, under all the circumstances, to do so; and (4) that the defect must have been the sole proximate cause of the injuries and damages claimed, which means that the plaintiff must prove freedom from contributory negligence.” Lukas v. New Haven, 184 Conn. 205, 207, 439 A.2d 949 (1981). The second and fourth requirements are at issue in this appeal. Significantly, the defendant does not challenge the court’s determination that the grate was defective.

I

The defendant first contests the court’s finding that it had constructive notice of the defective condition of the grate on which the plaintiff tripped. The existence of constructive notice is a question of fact subject to the clearly erroneous standard of review. Id., 207-208; see also Ormsby v. Frankel, 54 Conn. App. 98, 103, 734 A.2d 575 (1999) (“constructive notice is a question of fact”), aff'd, 255 Conn. 670, 768 A.2d 441 (2001). “A court’s determination is clearly erroneous only in cases in which the record contains no evidence to support it, or in cases in which there is evidence, but the reviewing court is left with the definite and firm conviction that a mistake has been made.” (Internal quotation marks omitted.) Considine v. Waterbury, 279 Conn. 830, 858, 905 A.2d 70 (2006).

A municipality “is required to exercise reasonable supervision over its streets and is chargeable with notice of what such supervision would disclose.” Mausch v. Hartford, 184 Conn. 467, 469, 440 A.2d 157 (1981). That duty “is a reactive obligation, not an anticipatory obligation.” Ormsby v. Frankel, 255 Conn. 670, 676, 768 A.2d 441 (2001). “The notice, actual or implied, of a highway defect causing injuries which a municipality must receive as a condition precedent [to] liability for those injuries, is notice of the defect itself which occasioned the injury, and not merely of conditions naturally productive of that defect and subsequently in fact producing it. Notice of another defect, or of the existence of a cause likely to produce the defect, is not sufficient.” (Internal quotation marks omitted.) Carl v. New Haven, 93 Conn. 622, 628, 107 A. 502 (1919). Similarly, “the predictability of a future defect does not provide the requisite notice to establish municipal liability under § 13a-149.” Prato v. New Haven, 246 Conn. 638, 644, 717 A.2d 1216 (1998). Rather, “to charge a defendant with constructive notice it is incumbent on the plaintiff to establish that the defect had been there a sufficient length of time and was of such a dangerous character that the defendant by the exercise of reasonable care could and should have discovered and remedied it.” (Internal quotation marks omitted.) Tirendi v. Waterbury, 128 Conn. 464, 468, 23 A.2d 919 (1942).

Although municipal liability under § 13a-149 arises from the breach of a statutory duty; Lukas v. New Haven, supra, 184 Conn. 212; negligence principles are relevant to the municipal highway defect statute. Prato v. New Haven, supra, 246 Conn. 645. A prerequisite to the application of those principles is the existence of an actual defect. As our Supreme Court has explained: “Before one can rely upon the principles of reasonableness and ordinary care to infer notice of a defect under § 13a-149, the claimed highway defect must actually exist. Municipalities are not liable under § 13a-149 for failure to inspect and discover a potential defect, or a defect that might arise at some future time. . . . [T]he reasonable duty to inspect and discover defects does not arise until there is an actual defect in the highway.” (Citations omitted.) Id., 646. Because the defendant does not contest the court’s finding that the grate on which the plaintiff tripped was defective, the court properly could rely on principles of negligence to infer notice of that defect.

Under principles of negligence, “municipalities must use reasonable care in discovering the existence of a defect, and negligent ignorance of a defect may support a finding that the municipality should have discovered the defect.” Id., 645. What constitutes reasonable care in that context is a fact specific inquiry. As the Supreme Court has observed: “What the law requires of [municipalities], and all that it requires, is the exercise of such efforts and the employment of such measures— directed to the end that their streets and walks be maintained in a reasonably safe condition, all the circumstances of the situation considered—as, in view of the circumstances and conditions, are in themselves reasonable. The circumstances to be taken into account, and the considerations to be weighed, in determining what is reasonable to be done, and what is a reasonable condition to be sought after and attained, if reasonably attainable, are many. . . . [Our courts] have realized, and frequently expressed, the impossibility of framing one of universal application in other than general language which is elastic in that it embodies the qualification of reasonableness under all the circumstances at every turn of the definition. The accepted general rule looks constantly to the ever changing circumstances of situations, and its key-note throughout is reasonableness in view of the circumstances as they appear upon each occasion.” Carl v. New Haven, supra, 93 Conn. 625-26. For that reason, “the circumstances of each case must be examined.” Prato v. New Haven, supra, 246 Conn. 646. On the particular circumstances presented in this case, we agree with the court that the defendant failed to exercise reasonable care over its sidewalks.

Although the defendant does not dispute that a defect existed, the mere existence of a defect does not establish liability under § 13a-149. Langton v. Westport, 38 Conn. App. 14, 19, 658 A.2d 602 (1995). It must also be demonstrated that the “defect had been there a sufficient length of time and was of such a dangerous character that the defendant by the exercise of reasonable care could and should have discovered and remedied it.” (Internal quotation marks omitted.) Tirendi v. Waterbury, supra, 128 Conn. 468. In its memorandum of decision, the court did not find that the grate’s defective condition was a recent development. Rather, the court specifically found that the grate had risen “over time . . . .” That finding is supported by the testimony of Christy Dlugolenski, the deputy director of parks and squares for the defendant, who testified that, as trees grow, the metal grates surrounding them are prone to rising. Dlugolenski testified that such a defect “doesn’t happen overnight,” but, rather, occurs “over a moderate period of time.” In addition, our Supreme Court has stated that “[i]nferences as to prior existence [of a highway defect] for a considerable time, which might arise from a condition necessarily more or less permanent or of slow development” are permitted in certain circumstances. Burlant v. Hartford, 111 Conn. 36, 37, 149 A. 132 (1930); see also Linn v. Hartford, 135 Conn. 469, 471-72, 66 A.2d 115 (1949). Given Dlugolenski’s testimony regarding the slow development of the defect at issue, the court reasonably could have inferred that the defect existed for a period of time sufficient for the defendant to have had constructive notice thereof.

Furthermore, to the extent that the defendant now complains that the court’s finding lacked clarity, it was incumbent on the defendant, as the appellant, to seek articulation of that factual determination. Under our rules of practice, it is the sole responsibility of the appellant to provide this court with an adequate record for review. Practice Book § 61-10. Practice Book § 66-5 permits an appellant to seek an articulation by the trial court of the factual and legal basis on which it rendered its decision. “[A]n articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification. ... An articulation may be necessary where the trial court fails completely to state any basis for its decision ... or where the basis, although stated, is unclear. . . . The purpose of an articulation is to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal.” (Citations omitted; internal quotation marks omitted.) Fantasia v. Milford Fastening Systems, 86 Conn. App. 270, 283, 860 A.2d 779 (2004), cert. denied, 272 Conn. 919, 866 A2d 1286 (2005). “[W]e will, in the absence of a motion for articulation, assume that the trial court acted properly.” (Internal quotation marks omitted.) Berglass v. Berglass, 71 Conn. App. 771, 789, 804 A.2d 889 (2002). The defendant did not request an articulation in the present case.

Our Supreme Court has also instructed that “[t]he nature of the defect is an important consideration in determining whether a municipality is chargeable with constructive notice of it.” Tirendi v. Waterbury, supra, 128 Conn. 468; see also Prato v. New Haven, supra, 246 Conn. 646-46 (duly to make reasonable inspection depends in part on nature of defect). The trial court found, and the defendant does not dispute, that the grate at issue (1) occupied “approximately 50 percent of the sidewalk’s width, thereby significantly reducing the walking area” for pedestrian travel, (2) occupied a “downtown location . . . where heavy pedestrian traffic would be expected” and (3) “over time has risen, creating a tripping hazard to persons walking on [the] sidewalk.” Those determinations find support in the testimony of Dlugolenski and the plaintiff, as well as multiple photographs of the defective grate that were admitted into evidence.

Returning our attention to the question of reasonable care in discovering the defect, we note that “[t]he test is not whether a defect would have been disclosed by an examination of the particular street, but rather whether it would have been disclosed by a reasonable supervision of the streets of the city as a whole.” Meallady v. New London, 116 Conn. 205, 209, 164 A. 391 (1933); see also Tirendi v. Waterbury, supra, 128 Conn. 468. At the same time, a municipality is required to exercise a greater degree of care over its sidewalks than other traveled ways. Meallady v. New London, supra, 209; Ritter v. Shelton, 105 Conn. 447, 452, 135 A. 535 (1927); Frechette v. New Haven, supra, 104 Conn. 87 (municipality’s duty “is to maintain its streets in a reasonably safe condition for travelers thereon; the care required obviously being greater over the sidewalk than over the traveled way”). Thus, the defendant’s reasonable care in the present case is measured not by its supervision of the particular sidewalk on which the plaintiff fell, but by the supervision of the defendant’s sidewalks as a whole.

It is axiomatic that “[t]he credibility of the witnesses and the weight to be given their testimony is for the trier.” Lukas v. New Haven, supra, 184 Conn. 208; Fukelman v. Middletown, 4 Conn. App. 30, 31, 492 A.2d 214 (1985). As such, the court, as trier of fact, was “free to accept or reject, in whole or in part, the testimony offered by either party. ” (Internal quotation marks omitted.) Somers v. Chan, 110 Conn. App. 511, 530, 955 A.2d 667 (2008). In its memorandum of decision, the court emphasized that Dlugolenski had testified that “she and the department were aware that these grates were purposely placed around young, neatly placed trees to aid water absorption into the soil to reach the roots of the trees, and she testified further that her department was aware of the fact that, as these trees grew and their root systems expanded, the pressure of the roots would cause the grates to rise above the sidewalk surface. She testified further that she knew that these grates could constitute a tripping hazard for persons walking on sidewalks.” Dlugolenski also testified that the condition of the grate at issue was such that “[i]t would have been put on a list to be ameliorated” had the defendant detected it. She further testified that her department had “moved away from tree grates as a way to circle trees because of the fact that the trees grow into them.”

In addition, Dlugolenski testified that no maintenance, inspection or repair records regarding the sidewalks existed. By contrast, in Burlant v. Hartford, supra, 111 Conn. 38, a case in which the court concluded that constructive notice did not exist, “[t]he evidence disclosed numerous sidewalk inspections on [the street on which the plaintiff fell] in 1927, and on January 5th and 18th and February 2d and 11th, 1928. The inspectors were instructed to report any variations of more than three fourths of an inch out of level in flagstone walks and orders were given to relay them. Several such orders were issued on February 25th as to sidewalks on [the street on which the plaintiff fell] in the vicinity of the premises in question.” Dlugolenski also testified that at the time of the accident in 2004, she was “understaffed.” As a result, Dlugolenski acknowledged that she was without adequate staff to maintain inspection reports or reports of work orders. Dlugolenski’s testimony further supports the court’s finding that “no inspections were scheduled prior to the plaintiff’s fall or after her fall . . . .”

On the particular facts and circumstances presented in this record, we conclude that the court properly determined that the defendant failed to exercise reasonable care over its sidewalks. Accordingly, we cannot say that the court’s finding of constructive notice was clearly erroneous.

II

The defendant next disputes the court’s finding that the plaintiff was not contributorily negligent. Like the prior claim, the contention is governed by the clearly erroneous standard of review. Lukas v. New Haven, supra, 184 Conn. 207-208.

To recover under § 13a-149, a plaintiff must prove, inter alia, that the defect was the sole proximate cause of her injuries. See id., 207; McGloin v. Southington, 15 Conn. App. 668, 675, 546 A.2d 906, cert. denied, 209 Conn. 813, 550 A.2d 1083 (1988). Our Supreme Court first identified sole proximate cause as the standard for determining municipal liability in Bartram v. Sharon, 71 Conn. 686, 690, 43 A. 143 (1899), stating: “It is the statute only, which entitles the plaintiff to compensation for his injury when that injury is caused through or by means of a defect in the highway. If the negligence of himself or of a third person is also a proximate cause, he cannot say with truth that he was injured by the defect; he can only say with truth that he was injured by his own or another’s carelessness and the defect, and the two combined give no cause of action under the statute.” The Supreme Court since has rebuffed attempts to abandon the sole proximate cause standard. See White v. Burns, 213 Conn. 307, 336, 567 A.2d 1195 (1990); see also Smith v. New Haven, 258 Conn. 56, 61-65, 779 A.2d 104 (2001) (discussing development of proximate cause standard in highway defect cases).

Because a plaintiff seeking recovery under § 13a-149 must prove that the defect was the sole proximate cause of her injuries, it follows that the plaintiff must demonstrate freedom from contributory negligence. Szachon v. Windsor, 29 Conn. App. 791, 798, 618 A.2d 74 (1992); McGloin v. Southington, supra, 15 Conn. App. 675 (no presumption under § 13a-149 that plaintiff exercising due care at time of injury); Janow v. Ansonia, 11 Conn. App. 1, 3, 525 A.2d 966 (1987). To do so, a plaintiff must have suffered injury while using the defective highway “with due care and skill.” (Internal quotation marks omitted.) Bartram v. Sharon, supra, 71 Conn. 695. In her complaint, the plaintiff alleged not only that the grate was defective, but also that she was in the exercise of due care at the time of her injury. In its answer, the defendant did not deny that allegation; it averred that it lacked sufficient knowledge on which to form a belief and thus left to the plaintiff her burden of proof. The defendant did not allege, as a special defense, that the plaintiffs injuries were proximately caused by her negligence. Cf. Janow v. Ansonia, supra, 4.

In her closing argument, the defendant’s counsel stated: “[The location of the plaintiffs fall] is an area that’s delineated ... by granite blocks, and there’s a grate there. Now, the plaintiff said she didn’t see the grate before she walked on it. It’s . . . clearly a different color, and there is a perfectly good section of sidewalk for her to walk on. She . . . chose not to look, and I don’t think you need to be looking down to see that grate; I think the reasonably prudent person is looking ahead, sees a tree. There’s issues with trees; there are roots. This one happened to have a grate. And when a tree is growing in a sidewalk . . . there is the issue that if she was using her . . . faculties in the appropriate way, she would have reasoned that she couldn’t walk in this particular area if she had looked. So, the law is, if she’s any percent negligent, then she doesn’t recover . . . .” In its memorandum of decision, the court rejected that claim, expressly declining to attribute any contributory negligence to the plaintiff.

That determination finds support in the record before us. At trial, the plaintiff testified as to the events of the morning of March 1, 2004, and the manner in which she conducted herself as she walked on Orange Street. As sole arbiter of credibility, the court was free to credit that testimony and find that the plaintiff exercised due care. See Lukas v. New Haven, supra, 184 Conn. 208; Somers v. Chan, supra, 110 Conn. App. 530. We therefore conclude that the court’s finding of no contributory negligence was not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although the plaintiff alleges that the claim was not preserved, the transcript of the April 2, 2008 proceeding indicates that the defendant’s counsel argued that to impose liability, the court must find “either actual or constructive knowledge” of the “actual defect,” rather than mere notice of conditions likely to create such defects.

       We do not suggest that the defendant bears the burden of proof in the present case; that burden belonged to the plaintiff. At the same time, when a party pursues a given claim on appeal, it is responsible for providing this court with an adequate record for review.

       The plaintiff again alleges that the claim was not preserved. To the contrary, the defendant’s counsel at the April 2, 2008 proceeding argued that a prerequisite to recovery under § 13a-149 is the plaintiffs freedom from contributory negligence and suggested that the plaintiff did not exercise due care.


author: BORDEN, J.

text:
    ROBERT CAMPAGNONE ET AL. v. DANIEL W. CLARK
    (AC 29440)
    Bishop, Lavine and Borden, Js.

      Argued April 20
    officially released August 25, 2009

      I. David Marder, with whom was Joel A. DeFelice, for the appellants (plaintiffs).

      Derek V. Oatis, for the appellee (defendant).
   Opinion

BORDEN, J.

The plaintiff homeowners, Robert Campagnone and Robin Campagnone, appeal from the judgment, rendered after a trial to the court, finding the defendant, Daniel W. Clark, liable for breach of a home improvement contract but awarding them only nominal damages. The plaintiffs claim that the court improperly (1) found that their proposed remediation estimate for exterior construction work was unnecessarily costly, (2) neglected to award damages on the basis of the defendant’s failure to build certain bifold doors and (3) reduced the final damages award by their unpaid contract balance. We affirm the judgment of the trial court.

The plaintiffs brought their action in four counts. In the first count, the plaintiffs claimed that the defendant breached a written home improvement contract by failing to properly build specified custom kitchen cabinetry and bifold doors. The second count alleged breach of an oral contract as a result of the improper installation of the kitchen cabinets. In the third count, the plaintiffs claimed that the defendant breached a separate oral contract as to some exterior construction work. The fourth count sought damages for alleged violations of the Home Improvement Act (act); General Statutes § 20-418 et seq.; and consequently the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., on the basis of the defendant’s failure to register as a home improvement contractor.

The court found in favor of the plaintiffs on the breach of contract claim alleged in count one but denied relief for both the exterior defects complained of in count three and the CUTPA violations alleged in count four. The court subsequently offset the plaintiffs’ total damages by the unpaid balance remaining on the contract and accordingly awarded only nominal damages. This appeal followed.

The court’s memorandum of decision and articulation and the underlying record reveal the following undisputed facts. The defendant, doing business as Old House Woodcraft, is engaged in the trade of custom cabinetry making. During all times relevant to this dispute, the defendant was not registered as a home improvement contractor as required by General Statutes § 20-420.

In August, 2003, the plaintiffs and the defendant entered into a written contract for the fabrication and construction of custom kitchen cabinetry in accordance with certain design sketches. Included in that kitchen cabinetry contract were plans for the building of bifold doors designed to conceal a wall oven. The contract price for that kitchen work was $17,951.50. The plaintiffs later entered into a separate oral contract with the defendant for the installation of the custom cabinets and additional interior work. They agreed to a flat rate of $15,000 for the interior work and to an hourly rate for the cabinet installation work.

Subsequently, in October, 2003, the plaintiffs and the defendant entered into an additional oral contract for various exterior home improvements to the plaintiffs’ deck, porch and lattice panels. The agreement included the fabrication and installation of porch railings and posts. The exterior work was to be billed on a time and materials rate. The defendant’s total bill for the exterior work was $6810.74.

Over the course of the home construction project, the relationship between the parties deteriorated, and the plaintiffs eventually requested that the defendant not return to the construction premises. The plaintiffs thereafter brought this action seeking damages arising from the defendant’s allegedly defective construction work. The plaintiffs, however, unilaterally withheld more than $8000 from their payment of invoices submitted to them in connection with the construction project. The plaintiffs claimed that they withheld that money to remediate the kitchen cabinetry and porch defects of which they complained.

Following a trial to the court, the court found that the custom kitchen cabinets fabricated by the defendant were defective. The court noted that there were “noticeable and uneven gaps between some cabinet doors and frames.” Additionally, “some paneling in the kitchen island . . . needed some minor corrective work, and [the] cabinet doors over the refrigerator did not ‘sit flush’ . . . .” Furthermore, the court found that “the defendant admittedly failed to construct [the] bifold doors . . . .” The court concluded that remediation expenses of $6336.95 for these defects were reasonable.

In contrast, the court refused to award remediation damages for the allegedly defective exterior work performed by the defendant. The plaintiffs claimed exterior defects in the form of “excessive spacing on some porch flooring, lattice not per spec, balusters not evenly spaced, [and] newel posts and post caps [separation].” The plaintiffs’ expert, Scott Newton, submitted a remediation estimate in connection with these alleged defects in the amount of $4904.16. The court, however, found Newton’s remediation proposal to be “unnecessarily costly,” reasoning that some of the alleged defects were repairable by applying caulking, while other proposed modifications were either approved by the plaintiffs or specifically not called for in the project blueprints.3 *

The court also denied any CUTPA relief. The plaintiffs claimed that the defendant’s failure to register as a home improvement contractor violated the act and consequently was a per se CUTPA violation. Although, as the court found, “[t]he defendant admittedly was not registered as a home improvement contractor,” the court nevertheless also found that the plaintiffs did not suffer an ascertainable loss as a result of the defendant’s registration inadequacies. Accordingly, the court found in favor of the defendant on the CUTPA claim.

Finally, the court turned to the issue of the plaintiffs’ damages. The court repeated its finding that the plaintiffs were entitled to $6336.95 to remediate the defective kitchen cabinetry. The court found, however, that this award was necessarily offset by the plaintiffs’ unilateral withholding of $8000 from the final contract balance. Finding that the plaintiffs’ cost to remediate was less than the amount withheld, the court rendered judgment in favor of the plaintiffs on the breach of contract claim for nominal damages in the amount of $1.

I

The plaintiffs first claim that the court improperly (1) found Newton’s remediation proposal for exterior work to be unnecessarily costly and (2) declined to award them $750 in damages for the defendant’s failure to construct the bifold doors. We disagree with both of these claims.

The court’s finding that the exterior remediation proposal was unnecessarily costly, along with its assessment of the bifold door damages, are findings of fact subject to the clearly erroneous standard of review. “The law governing [our] limited appellate review is clear. A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . Because it is the trial court’s function to weigh the evidence and determine credibility, we give great deference to its findings. ... In reviewing factual findings, [w]e do not examine the record to determine whether the [court] could have reached a conclusion other than the one reached. . . . Instead, we make every reasonable presumption ... in favor of the trial court’s ruling.” (Internal quotation marks omitted.) Stevenson Lumber Co.-Suffield, Inc. v. Chase Associates, Inc., 284 Conn. 205, 216-17, 932 A.2d 401 (2007).

With respect to their first challenge, the plaintiffs refer to the fact that the court mistakenly added two damage estimates when referencing Newton’s remediation proposal in its memorandum of decision. See footnote 4. They maintain that this error evidences a flaw in the court’s original conclusion that the proposed remedy was unnecessarily costly.

In its articulation, the court specifically addressed its miscalculation of Newton’s damage estimate. The court found, however, that even in light of this mistake, the exterior repairs proposed by Newton were not reasonably necessary. Upon our thorough review of the record, including the reasonable inferences that the trial court could have drawn therefrom, we conclude that there is ample evidence to support the court’s determination that Newton’s proposal was unnecessarily costly.* ** We cannot say that this finding was clearly erroneous. Accordingly, this claim fails.

The court’s alleged failure specifically to award the plaintiffs $750 in damages for the bifold doors also was not clearly erroneous. There is no dispute that the defendant did not build the bifold doors; however, it is also undisputed that the plaintiffs withheld more than $8000 from invoices submitted to them by the defendant. The court responded to inquiries concerning the bifold doors in its articulation and stated that “[a]ny costs to remediate defective workmanship are more than covered by the amount of the unpaid invoices.” Accounting for the $6336.95 in contract damages found attributable to the defendant, it certainly was logical for the court to find that the claimed $750 in damages, even if genuine, would be more than “covered” by the $8000 withheld by the plaintiffs. Therefore, the court’s treatment of the bifold door damages was not clearly erroneous, and this claim also must fail.

II

Last, the plaintiffs claim that the act; General Statutes § 20-418 et seq.; and specifically General Statutes § 20-429 (a), prohibited the court from offsetting the plaintiffs’ damages award by an amount equal to the unpaid balance remaining on the contract as a matter of law. We disagree.

Our analysis begins by setting forth the applicable standard of review. “To the extent that we are required to review conclusions of law or the interpretation of the relevant statute by the trial court, we engage in plenary review.” Location Realty, Inc. v. Colaccino, 287 Conn. 706, 717, 949 A.2d 1189 (2008). “Under plenary review, we must decide whether the trial court’s conclusions of law are legally and logically correct and find support in the record.” (Internal quotation marks omitted.) Krichko v. Krichko, 108 Conn. App. 644, 648, 948 A.2d 1092, cert. granted on other grounds, 289 Conn. 913, 957 A.2d 877 (2008) (appeal withdrawn May 19, 2009).

The act expressly invalidates home improvement contracts that fail to meet certain provisions. See General Statutes § 20-429 (a). Specifically, § 20-429 (a) (8) declares contracts entered into by unregistered contractors unenforceable. Furthermore, “in the absence of a showing of bad faith on the part of the homeowner, a contractor who does not comply substantially with § 20-429 (a) is barred from any monetary recovery, contractual or restitutionary.” New England Custom Concrete, LLC v. Carbone, 102 Conn. App. 652, 659, 927 A.2d 333 (2007), citing Barrett Builders v. Miller, 215 Conn. 316, 324-25, 576 A.2d 455 (1990).

It is undisputed that the defendant was not registered as a home improvement contractor while engaging in construction work with the plaintiffs. Consequently, the plaintiffs maintain that this § 20-429 (a) violation prohibited the court from offsetting the plaintiffs’ contractual damages by moneys they withheld from the defendant, as this was tantamount to a monetary recovery.

Recently, our Supreme Court addressed this issue in Hees v. Burke Construction, Inc., 290 Conn. 1, 961 A.2d 373 (2009). In that case, the plaintiff homeowners brought an action against the defendant contractor on the basis of allegedly unfinished and defective construction work. Id., 4—5. As in the present case, the homeowners pursued the claim notwithstanding an unpaid balance due on the contract for work performed by the contractor. Id., 4.

The attorney trial referee filed a report finding that the plaintiffs incurred $16,085 in costs to complete and to repair the work. Id., 5. The defendant contractor requested that this potential award be offset by the $16,472 balance remaining on the contract withheld by the plaintiffs. Id. The attorney trial referee declined the defendant’s request and concluded that because the contract did not comply with § 20-429 (a), the defendant was precluded from “reduc[ing] the damages award commensurate with the unpaid balance on the contract . . . .’’Id. The trial court accepted the referee’s report and rendered judgment in favor of the plaintiffs. Id., 6.

On appeal, the defendant claimed that neither the language of § 20-429 (a), nor any of the cases interpreting it, dispensed with traditional contract damage rules that mandate a showing of actual loss to recover on a contract claim. Id., 9. “To hold otherwise,” the defendant argued, “would give [the homeowners] a windfall double recovery . . . .” Id. Our Supreme Court agreed with this statutory analysis and concluded that “§ 20-429 (a) does not preclude a trial court from reducing the homeowner’s damages by the amount left unpaid under the contract.” Id., 10. Otherwise, the court reasoned, “§ 20-429 (a) could be read to allow a homeowner affirmatively to obtain a free home improvement project from the contractor, rather than simply to prevent the contractor from enforcing otherwise valid claims against the homeowner.” Id., 16. Awarding this type of an “unwarranted windfall” could not have been intended by the legislature. Id., 15.

The plaintiffs in the present case, unlike the homeowners in Ilees, included a CUTPA claim in their action against the defendant contractor. This additional claim, however, does not alter our conclusion as to the applicability of § 20-429 (a) to the plaintiffs’ damages award. “[T]he simple fact that § 20-429 (a) serves as the basis for [a] CUTPA violation . . . does not affect the [ultimate] damages calculation . . . .’’Id., 14-15. It also does not dispense with the firmly established principle that to succeed, a CUTPA claimant must demonstrate a statutory violation coupled with some ascertainable loss. “Once a violation of the act has been established . . . our cases make clear that the homeowners still must prove that they have suffered an injury or actual loss in order to recover damages under CUTPA.” Id., 14; see also Stevenson Lumber Co.-Suffield, Inc. v. Chase Associates, Inc., supra, 284 Conn. 214 (“in order to prevail in a CUTPA action, a plaintiff must establish both that the defendant engaged in a prohibited act and that, as a result of this act, the plaintiff suffered an injury” [emphasis in original; internal quotation marks omitted]). Therefore, litigants seeking CUTPA relief must present evidence of damages they have suffered. See New England Custom Concrete, LLC v. Carbone, supra, 102 Conn. App. 666. “There is no automatic entitlement to damages.” Id.

The record reveals that the plaintiffs have not provided adequate evidence demonstrating an ascertainable loss. The court found that the plaintiffs sustained $6336.95 in contract damages but reduced the final award by the $8000 that the plaintiffs withheld from the defendant. “It is axiomatic that the sum of damages awarded as compensation in a breach of contract action should place the injured party in the same position as he would have been in had the contract been performed. . . . The injured party, however, is entitled to retain nothing in excess of that sum which compensates him for the loss of his bargain. . . . Guarding against excessive compensation, the law of contract damages limits the injured party to damages based on his actual loss caused by the breach. . . . The concept of actual loss accounts for the possibility that the breach itself may result in a saving of some cost that the injured party would have incurred if he had had to perform. ... In such circumstances, the amount of the cost saved will be credited in favor of the wrongdoer . . . that is, subtracted from the loss . . . caused by the breach in calculating [the injured party’s] damages.” (Internal quotation marks omitted.) Hees v. Burke Construction, Inc., supra, 290 Conn. 7-8.

As our Supreme Court established in Hees, homeowners are unable to rely on § 20-429 (a) as a shield against their withholding of moneys due on a home improvement contract in an action brought by the homeowners themselves. Therefore, we agree with the court’s conclusion in the present case that the plaintiffs’ unpaid contract balance should have been subtracted from their total contract damages. The plaintiffs withheld an amount in excess of their actual damages incurred; consequently, they do not have an ascertainable loss for which recovery is permissible. Concluding otherwise would grant the plaintiffs a windfall that would reward their withholding of valid contract payments. This approach also would fail to account for their true contract damages. Accordingly, we conclude that the court’s offsetting of the plaintiffs’ damages award by moneys they unilaterally withheld from the defendant was correct as a matter of law.

The judgment is affirmed.

In this opinion the other judges concurred.

       Originally, the second count included several additional allegations of interior home improvement work that was not completed by the defendant. These claims were subsequently withdrawn by the plaintiffs, leaving only the improper cabinet installation claim at trial.

       The court included any possible damages for the improper installation work alleged in count two in the award for the claim stated in count one.

       General Statutes § 20-420 (a) provides in relevant part: “No person shall hold himself or herself out to be a contractor . . . without first obtaining a certificate of registration” from the commissioner of consumer protection.

       In its memorandum of decision, the court initially calculated the Newton estimate to be $9246.52, rather than $4904.16. This is attributable to the plaintiffs’ providing the court with two estimates prepared by Newton for the same exterior work. This inaccuracy is discussed further in part I of this opinion.

       More specifically, the court found: “[The defendant] credibly testified that separations in the newel posts and caps . . . were repairable by applying caulking. . . . The balusters can’t be expected to all be equally spaced, especially near a newel post. Nor does the blueprint call for such [spacing], . . . With respect to the use of pine instead of cedar for the lattice . . . [t]he defendant made that recommendation to the plaintiffs, who approved the use of pine.”

       A violation of the act “shall be deemed an unfair or deceptive trade practice under subsection (a) of section 42-110b.” General Statutes § 20-427 (c).

       We note the following relevant portion of the court’s articulation: “The [c]ourt apparently erred in finding the estimate to repair claimed defects in the newel posts and caps on the deck was $9246.52. The correct claim, it appears, should have been $4904.16. . . . [T]he evidence established [that] the newel posts and caps were installed properly. Any subsequent [damage] could reasonably be remedied by applying caulking . . . [t]hat would not even come close to the approximately $5000 in costs to replace them.”

       Newton’s remediation proposal itemized restoration to balusters, lattice panels, and newel posts and caps. With respect to the balusters, the plaintiffs claimed that remediation was necessary to fix some uneven spacing. In response, the court noted that the equidistant spacing of balusters, particularly near the newel posts, was not called for in the blueprints. This was acknowledged by Newton himself when he testified as the plaintiffs’ construction expert. As to the lattice work, the remediation proposal reflects the replacement of pine lattice panels with cedar panels. Although the original agreement may have called for the use of cedar panels, the court found, and the record demonstrates, that the plaintiffs did not object to the substitution of pine. The remediation estimate also reflects repair work to the newel post covers and post caps on the porch. In its memorandum of decision, and again in its articulation, the court stressed that any noticeable separation in the posts and caps was repairable by applying caulking. Our review of the record, including evidence that this separation was not present at the time of installation and likely resulted over time as a result of rainwater penetration, supports this finding.

       There is some dispute over whether the plaintiffs were entitled to any damages regarding the bifold doors. The defendant claims, and the plaintiffs concede, that the parties discussed the defendant’s failure to construct the bifold doors and agreed that the defendant would credit this amount toward the plaintiffs’ final invoices. Whether this amount was properly credited is not relevant to our conclusion that the court’s bifold door damages findings are not clearly erroneous. Therefore, we decline to address it further.

       General Statutes § 20-429 (a) provides in relevant part: “No home improvement contract shall be valid or enforceable against an owner unless it . . . (8) is entered into by a registered salesman or registered contractor . . . .”

       The principal issue in Hees was whether a violation of the act, and specifically § 20-429 (a), “precludes a home improvement contractor from reducing the damages that it owes for breach of contract to a nonbreaching homeowner by an amount equal to the unpaid balance remaining on the contract.” Hees v. Burke Construction, Inc., supra, 290 Conn. 3.

       The home improvement contract did not include a right of rescission clause as required by § 20-429 (a) (6). Hees v. Burke Construction, Inc., supra, 290 Conn. 5. Although the plaintiffs in the present case complained of a registration violation under § 20-429 (a) (8), this technical difference is of no consequence, as the Supreme Court in Hees analyzed the thrust of § 20-429 (a) as a whole. See footnote 11 of this opinion.

       The court noted that the language of § 20-429 (a) did not unambiguously indicate whether the statute precluded a contractor from relying on offset protection in an action brought by a homeowner. The court thereafter turned to extratextual sources and concluded that “the legislative history of § 20-429 (a) does not support the [homeowners’] contention that the act was intended to supersede established principles of contract damages, and allow a homeowner affirmatively to recover damages to which he would not otherwise be entitled.” Hees v. Burke Construction, Inc., supra, 290 Conn. 13.