author: WEST, J.

text:
    STATE OF CONNECTICUT v. DANIEL PEREZ

    (AC 23457)
    West, DiPentima and McLachlan, Js.

      Argued September 18
    officially released December 2, 2003

      Francis T. Mandanici, assistant public defender, for the appellant (defendant).

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

       Reconsideration was granted, sua sponte, on March 15,2004. This opinion has been superseded by State v. Perez, 82 Conn. App. 100, 842 A.2d 1187 (2004).

   Opinion

WEST, J.

The defendant, Daniel Perez, appeals from the judgment of conviction rendered by the trial court subsequent to his plea of nolo contendere to the charge of assault in the first degree in violation of General Statutes § 53a-59 (a) (3). On appeal, the defendant claims that the court improperly (1) denied his motion to dismiss due to selective prosecution and (2) denied his request for an evidentiary hearing on the same issue. The defendant asserts that the court’s decisions were improper because he made a prima facie showing that both prongs of the test for selective prosecution were satisfied. We are not persuaded.

The court reasonably could have found the following facts. On May 28, 2000, an officer with the Berlin police department attempted to stop and approach the vehicle being driven by the defendant after discovering that it was displaying a stolen marker plate. The officer stopped the vehicle and, as he approached the vehicle, the defendant sped away in an apparent attempt to flee. The officer pursued the vehicle to no avail. As the chase neared the Meriden town line, the Berlin police department notified the Meriden police department of the chase and of the fact that the defendant was approaching the town line. The Berlin police department abandoned the chase when the defendant reached Meriden.

Once the defendant was in Meriden, a Meriden police officer discovered the defendant driving southbound in a northbound lane. The officer observed the defendant changing back and forth between the northbound and southbound lanes, almost striking vehicles head on and forcing northbound vehicles off the road. The officer estimated that the defendant had been driving in that manner for approximately four miles since the Berlin police department abandoned its pursuit. At that time, a second pursuit began between the Meriden police officer and the defendant, who failed to yield and continued to flee in a dangerous manner.

Throughout the pursuit, the defendant drove approximately sixty to seventy miles per hour through a densely populated thirty-five mile per hour zone. The defendant repeatedly drove on the wrong sides of the road and median, forcing traffic onto the sidewalk and into oncoming traffic. Several Meriden police officers assisted with the pursuit by attempting to warn oncoming traffic of the defendant and by trying unsuccessfully to guide him onto a highway and away from the densely populated area.

The pursuit ended tragically when the defendant, while traveling southbound in a northbound lane, struck a vehicle attempting to make a left turn. The driver of the vehicle suffered severe injuries, including massive head and brain injuries, neurological injuries, and massive pelvic and internal injuries. At the scene of the crash, the Meriden police officers found the defendant trying frantically to escape from the vehicle in an apparent attempt to flee on foot. The officers also discovered two passengers in the defendant’s vehicle, one of whom was yelling at the defendant for having ignored the passenger’s requests to stop.

The defendant was charged with two counts of assault in the first degree in violation of subdivisions (1) and (3) of § 53a-59 (a), and two counts of assault in the second degree in violation of subdivisions (2) and (3) of General Statutes § 53a-60 (a), as well as with numerous motor vehicle violations. The defendant filed a motion to dismiss on the ground of selective prosecution and requested an evidentiary hearing on the issue. The court denied both the defendant’s motion and his hearing request. The defendant thereafter pleaded nolo contendere to one count of assault in the first degree in violation of § 53a-59 (a) (3) and was sentenced to twenty years imprisonment, execution suspended after ten years. The defendant’s plea was conditional on his right to appeal, pursuant to General Statutes § 54-94a and Practice Book § 61-6, from the denial of his motion to dismiss. This appeal ensued.

I

The defendant first claims that the court improperly denied his motion to dismiss on the ground of selective prosecution because (1) the Meriden police officers were similarly situated relative to him, but were not prosecuted and, therefore, that he was selectively prosecuted, and (2) he was the victim of invidious discrimination on the basis of his status as a nonpolice officer.

“We must first consider the standard of review where a claim is made that the court failed to grant a motion to dismiss. Our standard of review of a trial court’s . . . conclusions of law in connection with a motion to dismiss is well settled. . . . [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts .... Thus, our review of the trial court’s ultimate legal conclusion and resulting [denial] of the motion to dismiss will be de novo.” (Internal quotation marks omitted.) State v. Vitale, 76 Conn. App. 1, 14, 818 A.2d 134, cert. denied, 264 Conn. 906, 826 A.2d 178 (2003).

The test for selective prosecution is well settled. “A defendant claiming discriminatory prosecution must show (1) that others similarly situated have generally not been prosecuted and that he has been singled out and (2) that he is the victim of invidious discrimination based on impermissible considerations such as race, religion, or the exercise of a constitutionally protected right.” (Internal quotation marks omitted.) State v. Angel C., 245 Conn. 93, 127, 715 A.2d 652 (1998). In determining whether two groups are similarly situated for equal protection purposes, we must look for “persons situated similarly in all relevant aspects . . . .” (Emphasis in original; internal quotation marks omitted.) Thomas v. West Haven, 249 Conn. 385, 402, 734 A.2d 535 (1999), cert. denied, 528 U.S. 1187, 120 S. Ct. 1239, 146 L. Ed. 2d 99 (2000). “[W]e have traditionally accorded the state’s attorney broad discretion in determining what crime or crimes to charge in any particular situation. . . . And unless constitutional or other compelling reasons require otherwise, we abstain from setting policy for the performance of the prosecutorial function.” (Citation omitted; internal quotation marks omitted.) State v. Ellis, 197 Conn. 436, 478, 497 A.2d 974 (1985), on appeal after remand sub nom. State v. Paradise, 213 Conn. 388, 567 A.2d 1221 (1990).

A

We first address the issue of whether the Meriden police officers and the defendant were “similarly situated” in satisfaction of prong one of the test for selective prosecution. In support of his claim as to that prong, the defendant argues that the officers as well as the defendant were violating the law by speeding and driving on the wrong side of the road, that the officers are not immune from criminal liability because the chase violated state and local pursuit guidelines, and that the officers were the proximate cause of the accident because had they not pursued him, no accident would have resulted. To make that determination, we must consider and weigh the similarities and differences between the two groups to determine whether they are “situated similarly in all relevant aspects . . . .” (Emphasis in original; internal quotation marks omitted.) Thomas v. West Haven, supra, 249 Conn. 402.

In this case, the relevant differences between the groups far outweigh the relevant similarities. The only similarity shared by the defendant and the Meriden police officers is the fact that both groups exceeded the speed limit and drove into oncoming traffic during a police pursuit. Looking now to their relevant differences, we have, on the one hand, a criminal suspect in possession of stolen property, fleeing from law enforcement officials, leading officers from two police departments on a high speed chase through a densely populated area and into oncoming traffic, all in an apparent attempt to circumvent the legal repercussions he inevitably faced as a result of his original unlawful activity. We have, on the other hand, the Meriden police officers, acting in their official capacities, with specialized training in safe driving tactics, attempting to apprehend a fleeing suspect in possession of stolen property, following his dangerous lead in an attempt to protect drivers and pedestrians put in potential danger by his erratic driving. The relevant differences, without question, far outweigh the relevant similarities.

In addition, the Meriden police officers, unlike the defendant, were authorized by General Statutes § 14-283 (a) and (b) to exceed the posted speed limit and to disregard regulations governing the direction of movement in their pursuit of a fleeing law violator. It is not for this court to determine whether the police officers, acting under their statutory authority, were negligent or reckless in their pursuit of the defendant. It is only for this court to decide whether the defendant and the Meriden police officers are “similarly situated” for equal protection purposes. We hold, without hesitation, that they are not.

B

The defendant further claims that he has satisfied the second prong of the test for selective prosecution. In support of this claim, the defendant asserts that he was the victim of invidious discrimination because “the unjustifiable standard in the present case . . . concerned color, but not the color of skin. . . . [T]he people making the decisions either wear a blue uniform or identify with those who do and work closely with them .... It is because of the blue uniform that the state chose not to prosecute said police officers while it is because the defendant is not a police officer that the state chooses to prosecute him.” That claim warrants little discussion.

It is ludicrous to suggest that the entire population of nonpolice officers in the state of Connecticut is discriminated against on the basis of an “impermissible consideration” comparable to race and religion. The defendant’s contention that he was the victim of invidious discrimination on the basis of his status as a nonpo-lice officer fails without question. We conclude that the defendant has not satisfied either prong of the test for selective prosecution.

II

The defendant next claims that the court improperly denied his request for an evidentiary hearing to prove selective prosecution. In support of his claim, the defendant asserts that he had a due process right to put on evidence to prove his defense.

We review a court’s decision not to hold an evidentiary hearing on the issue of selective prosecution for abuse of discretion. See United States v. Fares, 978 F.2d 52, 59 (2d Cir. 1992). “Our review of the trial court’s exercise of its discretion is limited to questions of whether the court correctly applied the law and could reasonably have concluded as it did. . . . Every reasonable presumption will be given in favor of the trial court’s ruling. ... It is only when an abuse of discretion is manifest or where an injustice appears to have been done that a reversal will result from the trial court’s exercise of discretion.” (Internal quotation marks omitted.) Board of Education v. East Haven Education Assn., 66 Conn. App. 202, 216, 784 A.2d 958 (2001).

Neither this court nor our Supreme Court has yet determined under what circumstances a defendant claiming selective prosecution is entitled to an eviden-tiary hearing. We believe that the better view is that “[n]o evidentiary hearing ... is required unless the [trial], court, in the exercise of its discretion, finds that the required prima facie showing has been made as to both elements of the test.” St. German of Alaska Eastern Orthodox Catholic Church v. United States, 840 F.2d 1087, 1095 (2d Cir. 1988). Consequently, we hold that an evidentiary healing to prove selective prosecution is not a matter of right and is not available to every defendant, but rather is to be granted at the discretion of the trial court following a prima facie showing by the defendant that a legitimate claim exists with regard to both prongs of the selective prosecution test.

In this case, the court considered the defendant’s offer of proof and concluded, as a matter of law, that he had not and could not make a prima facie showing of selective prosecution. The court stated: “[E]ven accepting . . . every bit of your offer of proof, I do not believe, and I frankly feel that it’s quite clear in my mind, that there is no showing here that rises to the level of entitling you to a healing.” On the basis of the defendant’s offer of proof, the court concluded that the defendant had not “reached the threshold” with regard to either prong.

Giving every reasonable presumption in favor of the court’s ruling, we find that the court’s conclusion was reasonable in that the defendant had not made a prima facie showing with regard to either prong of the selective prosecution test and as such was not entitled to a hearing. Even if we assume arguendo that everything in the defendant’s offer of proof was true, it would not constitute a defense to the prosecution. Even with a hearing, nothing in the defendant’s offer of proof indicated that he could have proven that he was “similarly situated” relative to the Meriden police officers in satisfaction of prong one or that his status as a nonpolice officer was an “impermissible consideration” in satisfaction of prong two. We agree with the court that “[w]hether or not the police are negligent as compared to whether or not there is selective prosecution, those are completely different criteria, two different criteria entirely . . . .” Although the defendant may have been prepared to prove that the officers were negligent in their pursuit of him, such a showing would have been wholly unrelated to whether there was selective prosecution.

The judgment is affirmed.

In this opinion the other judges concurred.

       To prove a claim of selective prosecution, a defendant must show “(1) that others similarly situated have generally not been prosecuted and that he has been singled out and (2) that he is the victim of invidious discrimination based on impermissible considerations such as race, religion, or the exercise of a constitutionally protected right.” (Internal quotation marks omitted.) State v. Angel C., 245 Conn. 93, 127, 715 A.2d 652 (1998).

       General Statutes § 14-283 (a) provides in relevant part: “ ‘Emergency vehicle’, as used in this section, means . . . any state or local police vehicle operated by a police officer ... in the pursuit of fleeing law violators . . . while in the course of such officer’s employment and while responding to an emergency call.”
      General Statutes § 14-283 (b) provides in relevant part: “The operator of any emergency vehicle may ... (3) exceed the posted speed limits or other speed limits imposed by or pursuant to section 14-218a or 14-219 as long as such operator does not endanger life or property by so doing, and (4) disregard statutes, ordinances or regulations governing direction or movement or turning in specific directions.”

       In St. German of Alaska Eastern Orthodox Catholic Church v. United States, supra, 840 F.2d 1094-95, the United States Court of Appeals for the Second Circuit addressed a claim of discriminatory investigation rather than a claim of selective prosecution. The court, however, subjected the discriminatory investigation claim to the test for selective prosecution. Id., 1095.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    HARTFORD CASUALTY INSURANCE COMPANY ET AL. v. LITCHFIELD MUTUAL FIRE INSURANCE COMPANY
    (AC 23896)
    Lavery, C. J., and DiPentima and Peters, Js.

      Argued October 14
    officially released December 2, 2003

      Philip F. von Kuhn, for the appellants (plaintiffs).

      Joel J. Rottner, with whom, on the brief, was Kirby G. FLuget, for the appellee (defendant).
   Opinion

PETERS, J.

This case concerns a premises liability insurance policy. The issue is whether the policy provides coverage for personal injuiy litigation arising out of a negligent use of the premises that is not linked to a defective condition in the premises themselves. The injured person was a child who was bitten on the premises by a dog that was owned and kept by the owner of the business and the premises. The trial court concluded that the owner did not have insurance coverage because the owner did not keep the dog on the premises for the purpose of protecting the premises. Accordingly, it granted the insurer’s motion for summary judgment. We disagree and reverse the judgment of the trial court.

The plaintiffs, Hartford Casualty Insurance Company (Hartford Casualty) and Mitch Wylie (Wylie), the president of Strictly Dirt, Inc. (Strictly Dirt), filed a four count complaint against the defendant, Litchfield Mutual Fire Insurance Company. The plaintiffs sought a declaratory judgment that Wylie had coverage under one of two policies issued by the defendant, one in which the insured was Wylie and the other in which the insured was Strictly Dirt, a company wholly owned by Wylie. For the sake of convenience, we will focus on the terms of the Wylie policy.

The plaintiffs alleged that the policy the defendant issued to Wylie provided coverage for him as the owner of a dog that bit a business invitee on the business premises of Strictly Dirt, located at 309 Albany Turnpike, Canton. They further alleged that the policy obligated the defendant to provide a defense for Wylie in the dog bite litigation and to indemnify both plaintiffs for costs incurred in settling that litigation.

The plaintiffs filed a motion for summary judgment with respect to the defendant’s alleged duty to defend. The defendant then filed a cross motion for summary judgment, in which it denied that the Wylie policy provided coverage for the dog bite incident.

The trial court granted the motion filed by the defendant and denied the motion filed by the plaintiffs. Without expressly addressing the other counts of the plaintiffs’ complaint, the court rendered a judgment in favor of the defendant. The plaintiffs have appealed.

Because a summary judgment depends on a finding that there is no genuine issue of material fact, an appeal from such a judgment necessarily raises a question of law. “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . Our review of the trial court’s decision to grant [a] motion for summary judgment is plenary.” (Citation omitted; internal quotation marks omitted.) Barry v. Quality Steel Products, Inc., 263 Conn. 424, 450, 820 A.2d 258 (2003).

The question of law in this case concerns the proper interpretation of the premises insurance policy issued to Wylie by the defendant. The policy did not purport to cover any and all risks of injury that might arise in connection with Wylie’s business, Strictly Dirt. Instead, the policy expressly limited coverage for bodily injury to “an occurrence [that arises] out of . . . use of the insured premises or operations that are . . . incidental to the insured premises.” The gist of the plaintiffs’ appeal is that the trial court interpreted this language too narrowly. We agree.

The trial court’s memorandum of decision describes the underlying facts, which are undisputed. “On March 15.1997, Hartford Casualty issued a homeowner’s insurance policy to Wylie for a term of one year. On June 27.1997, [the defendant] issued two insurance policies, a commercial ‘premises only’ policy to Wylie as owner of 309 Albany Turnpike and an identical policy to [Strictly Dirt] as lessee of the subject property.” Wylie was the president and sole stockholder of Strictly Dirt, a company engaged in the business of buying and selling dirt bikes, dirt bike parts and accessories.

“On February 21, 1998, two year old Samantha Bard was bitten by Wylie’s dog while on the premises of [Strictly Dirt]. On February 14, 2000, Bard, through her parent and next friend, Stacey Busque; Stacey Busque individually; and Troy Bard filed a thirty count complaint against Wylie and [Strictly Dirt] seeking damages in connection with the dog bite incident. Fifteen counts were directed against Wylie as the owner and/or keeper of the dog and fifteen counts were directed against [Strictly Dirt] as the owner and/or keeper of the dog on its business premises. The defendant defended [Strictly Dirt] but refused to defend Wylie. Hartford Casualty defended Wylie and ultimately settled all claims against him. While the dog bite suit was pending, Hartford Casualty and Wylie filed the present declaratory judgment action seeking a judgment that [the defendant] had a duty to defend and indemnify Wylie in the dog bite suit, that the coverage under the two commercial policies issued by [the defendant] was primary and that the coverage under the homeowner’s policy issued by Hartford Casualty was excess.”

I

DUTY TO DEFEND

As our case law requires, the trial court decided the coverage issue with respect to the defendant’s duty to defend Wylie by referring to the pleadings in the dog bite complaint. See, e.g., Board of Education v. St. Paul Fire & Marine Ins. Co., 261 Conn. 37, 40-41, 801 A.2d 752 (2002); Flint v. Universal Machine Co., 238 Conn. 637, 646, 679 A.2d 929 (1996). The complaint listed several ways in which Wylie’s alleged negligence caused the dog bite to occur. By including a street address, the complaint identified the Strictly Dirt premises as the place at which the dog bite had occurred. It did not, however, allege that Wylie was the owner of the premises, that he was performing services for Strictly Dirt or that he kept the dog for the benefit of Strictly Dirt.

The trial court concluded that the absence of an express tie-in between the allegations of the complaint and the terms of the premises insurance policies was fatal to the plaintiffs’ claim that the defendant had a duty to defend Wylie in the dog bite proceedings. The court held: “A careful reading of the dog bite complaint, however, does not support the plaintiffs’ assertion that it contains allegations that Wylie was negligent while acting as an agent or employee of Strictly Dirt, Inc. Moreover, the subject policy states that where the insured is an organization, ‘insured means you and all of your executive officers and directors, but only while acting within the scope of their duties in connection with the business conducted on the insured premises described on the Declarations. . . . Insured also includes . . . your employees, for acts within the scope of their employment by you . . . .’ (Emphasis added.)” The court found that “uncontroverted evidence in the present action establishes that the dog was unrelated to Wylie’s duties as an employee of Strictly Dirt, Inc., and therefore Wylie was not acting within the scope of his duties as an employee or director of Strictly Dirt, Inc., when his dog bit [the victim].” Accordingly, the court granted the defendant’s motion for summary judgment.

Although we agree with the trial court that the defendant had no duty to defend Wylie, we do so on a different ground. Our Supreme Court has held that a determination of whether an insurer has such a duty is not necessarily confined to an examination of the allegations of the underlying complaint. Keithan v. Massachusetts Bonding & Ins. Co., 159 Conn. 128, 141-42, 267 A.2d 660 (1970). There thus may be cases in which an insurer has access to additional facts that supplement the complaint so as to trigger a duty to defend.

On the record in this case, however, the defendant had no reason to know anything other than the terms of the insurance policy and the allegations of the complaint. Wylie’s affidavit in support of the plaintiffs’ motion for summary judgment referenced his delivery of a copy of the complaint to the defendant and nothing else. Even though the defendant must be held to have recognized that the dog bite took place on insured premises, we are not persuaded that it should be held to have been aware of any linkage between Wylie’s alleged negligence and the business conducted on the insured premises. For all the defendant knew or had reason to know, the dog might have been on the premises for Wylie’s personal convenience for one day only.

We conclude, therefore, that, under the circumstances of this case, the defendant did not have a duty to defend Wylie. The trial court properly granted the defendant’s motion for summary judgment on count two of the plaintiffs’ complaint.

n

DUTY TO INDEMNIFY

Although the motions for summary judgment did not address the plaintiffs’ claim for indemnity, the trial court also considered the merits of the plaintiffs’ claim that the defendant had a duty to indemnify, as alleged in count one of the plaintiffs’ complaint. The court’s judgment was not restricted to count two. Because the parties’ arguments to the court at trial and in their appellate briefs discuss the indemnity issue, we shall do likewise.

The trial court concluded, for three reasons, that the defendant had no duty to indemnify the plaintiffs. It held that: (1) the language of the defendant’s policy did not provide coverage for the dog bite unless the dog was a watchdog; (2) the factual record did not support Wylie’s claim for coverage; and (3) the defendant’s policy was secondary to the homeowner’s policy issued to Wylie by Hartford Casualty. We will discuss separately why we disagree with each of the court’s conclusions.

A

In its memorandum of decision, the trial court properly observed that a question of coverage under an insurance policy presents a question of law that must be answered according to the language of the policy. The court did not, however, refer to the legal principle that guides this question of law. “Our analysis of the language of the insurance contract is governed by the well established principle of insurance law that policy language will be construed as laymen would understand it and not according to the interpretation of sophisticated underwriters, and that ambiguities in contract documents are resolved against the party responsible for its drafting; the policyholder’s expectations should be protected as long as they are objectively reasonable from the layman’s point of view. . . . The premise behind the rule is simple. The party who actually does the writing of an instrument will presumably be guided by his own interests and goals in the transaction. He may choose shadings of expression, words more specific or more imprecise, according to the dictates of these interests. ... A further, related rationale for the rule is that [s]ince one who speaks or writes, can by exactness of expression more easily prevent mistakes in meaning, than one with whom he is dealing, doubts arising from ambiguity are resolved in favor of the latter. . . . This canon, commonly styled contra proferentem, is more rigorously applied in the context of insurance contracts than in other contracts.” (Citation omitted; internal quotation marks omitted.) Israel v. State Farm Mutual Automobile Ins. Co., 259 Conn. 503, 508-509, 789 A.2d 974 (2002); see also 2 G. Couch, Insurance (3d Ed. 1995) § 22:11, pp. 22-23 through 22-29.

In this case, the policy naming Wylie as insured provided the following in coverage L: “BODILY INJURY LIABILITY/PROPERTY DAMAGE LIABILITY. We pay all sums which an insured becomes legally obligated to pay as damages due to bodily injury or property damage to which this insurance applies. The bodily injury or property damage must be caused by an occurrence and arise out of the ownership, maintenance or use of the insured premises or operations that are necessary or incidental to the insured premises.” No Connecticut appellate court has had the occasion to interpret this language.

The trial court agreed with the defendant that coverage L should be interpreted narrowly so as to require an insured to demonstrate a direct relationship between the allegedly covered occurrence and the insured premises. In its view, the defendant’s policy would have provided coverage for the dog bite only if the dog’s presence on the insured premises had been connected to a condition or use of the building as a building, that is to say if the dog had been there as a watchdog. Without such a limitation on coverage, the court observed, the premises policy would be indistinguishable from a commercial general liability policy, which would have provided coverage for liability arising from any aspect of the enterprise conducted within the insured premises.

The court based its limiting interpretation on 9 G. Couch, Insurance (3d Rev. 1997) § 132:59, p. 132-75, and on case law from other jurisdictions. We agree with the plaintiffs that these authorities do not support the court’s interpretation of the policy.

We begin with an examination of the Couch treatise on insurance. The court’s citation of Couch is accurate. The court failed, however, to note the context of Couch’s statement. Later in § 132:59, Couch describes the nature of the insurance policy to which the section is addressed as a landlord-tenant insurance policy. Id., § 132:59, pp. 132-75 through 132-77. It is true that, under the common law of premises liability, a landlord is liable for injury to a tenant only if the landlord failed to exercise a reasonable degree of care with respect to a known or foreseeable condition of the building (or its immediate surroundings) that the property owner controlled. See LaFlamme v. Dallessio, 261 Conn. 247, 256-57, 802 A.2d 63 (2002). The fact that landlord-tenant insurance relates only to the building as a building does not establish that the premises policy at issue in this case is equally limited. Indeed, the defendant has not argued that its policy provided coverage only for litigation between Wylie and its tenant, Strictly Dirt. Whatever may be the proper characterization of the victim’s presence on the Strictly Dirt premises in this case, it is clear that she was not there as Wylie’s tenant. Couch’s discussion is, therefore, not illuminating.

The trial court also discussed the New York case of De Forte v. Allstate Ins. Co., 81 App. Div. 2d 465, 442 N.Y.S.2d 307, appeal dismissed, 54 N.Y.2d 1027 (1981). In that case, a watchdog bit a police officer while the insured was off the insured premises to buy lightbulbs for the premises. The court held that the insured was entitled to coverage under a landlord-tenant insurance policy that obligated the insurer to pay for damages caused by an occurrence “arising out of the ownership, maintenance or use of the insured premises . . . and all operations necessary or incidental to the business of the Named Insured conducted at or from the insured premises.” (Internal quotation marks omitted.) Id., 468. Focusing on the purpose of the insured’s errand, the court concluded that her off the premises purchase of lightbulbs arose out of her ownership or maintenance of the insured premises and that the purchase was “reasonably necessary or incidental” to the insured’s business. Id.

According to the defendant, De Forte supports the court’s conclusion in this case because of the fact that the dog in that case was a watchdog. The De Forte decision, however, was not based on that fact. The insured had taken the dog with her to protect her car from being stolen. The injury caused by her dog was nonetheless covered because her errand was related to her business responsibilities as a landlord. Indeed, the court expressly deemphasized the significance of the watchdog to its ruling in favor of the insured. It stated: “Whether [the insured] chose to take or not to take her watchdog with her cannot serve as a relevant consideration in determining coverage.” Id., 469.

On this record, the court’s reliance on De Forte was misplaced. Despite the defendant’s argument to the contrary, it was not implicit in the De Forte decision that coverage would have been denied in the absence of the relationship between the dog and the insured premises.

The other case on which the court relied is Bewig v. State Farm Fire & Casualty Ins. Co., 848 S.W.2d 521, 522 (Mo. App. 1993), which denied coverage for a dog bite caused by a pet dog owned by someone other than the insured. We are not persuaded that, under those circumstances, it was significant that the dog in question was not a watchdog. In this case, it is conceded that Wylie was the insured, the owner of the insured premises and the owner of the dog that bit the underlying claimant.

Even though we conclude that the court did not adduce persuasive support for its limiting interpretation of the insurance policy, we recognize that this conclusion is not sufficient for the plaintiffs to prevail on appeal. It was and remains their responsibility to establish that, properly interpreted, the policy provided coverage for the injury caused by Wylie’s dog.

The plaintiffs acknowledge that there are no Connecticut cases that dispositively interpret Wylie’s premises insurance policy in their favor. They maintain, nonetheless, that the signposts along the road point to a broad interpretation of the phrase “use of the insured premises.” We agree.

The plaintiffs observe that the trial court’s interpretation of the premises liability policy did not take into account the definition of the term “insured” in the Wylie policy. The policy states: “Insured — If shown on the Declarations as an ‘individual,’ insured means you and your spouse, but only with respect to the conduct of a business on the insured premises of which you are the sole owner.” (Emphasis added.) As in De Forte, they claim that, if the dog was on the premises for business purposes, Wylie was entitled to coverage.

The plaintiffs’ argument is supported by our reasoning in Edelman v. Pacific Employers Ins. Co., 53 Conn. App. 54, 728 A.2d 531, cert. denied, 249 Conn. 918, 733 A.2d 229 (1999). That case involved the interpretation of a premises insurance policy that provided coverage for an innkeeper for injuries “arising out of the . . . use of . . . the premises . . . .” (Internal quotation marks omitted.) Id., 59. It arose in the context of an assault of a state trooper by an innkeeper who was resisting arrest following a domestic dispute. Id., 56.

Although we recognized that this phrase was a limitation on coverage, we held that the term “use” should be accorded its general meaning. We cited with approval the dictionary meaning of that term to encompass “the legal enjoyment of property that consists in its employment, occupation, exercise, or practice.” (Internal quotation marks omitted.) Id., 61. Instead of limiting the breadth of this definition, we concluded, in accordance with Alderman v. Hanover Ins. Group, 169 Conn. 603, 607, 363 A.2d 1102 (1975), that an insured “uses” property if he “puts it to his own service or to the purpose for which it was ordinarily intended.” Edelman v. Pacific Employers Ins. Co., supra, 53 Conn. App. 61. On the facts, we concluded that insurance coverage had properly been denied because the innkeeper’s assault of a trooper was not an ordinarily intended use of the insured premises. Id.

Edelman supports the plaintiffs’ interpretation of “use of the insured premises” in this case. In light of the policy’s definition of the term “insured,” Wylie’s use of the premises for business purposes was precisely the use of the property that was contemplated by the parties. The defendant has not argued that the victim was on the premises for any use unrelated to Wylie’s business.

Connecticut case law that broadly interprets analogous provisions in automobile insurance policies lends further support to the plaintiffs’ interpretation of the “use of the insured premises” clause in Wylie’s policy. In those cases, our Supreme Court has interpreted the term “use” as including “all proper uses of the vehicle” Board of Education v. St. Paul Fire & Marine Ins. Co., supra, 261 Conn. 43 (insurance coverage for sexual assault of student after departure from school bus). To establish use, “it is sufficient to show only that the accident or injury ‘was connected with,’ ‘had its origins in,’ ‘grew out of,’ ‘flowed from,’ or ‘was incident to’ the use of the automobile . . . .” Hogle v. Hogle, 167 Conn. 572, 577, 356 A.2d 172 (1975) (homeowner’s policy exclusion for accidents caused by “ ‘use’ of an automobile” effective to deny coverage for automobile accident caused by dog’s interference with driver).

Furthermore, the plaintiffs’ interpretation of “use of the insured premises” is consistent with the underlying common law of premises liability. Under that law, a retail store owner is liable to a business invitee who is injured as a result of an unsafe condition on the premises of which the owner had actual or constructive notice. The unsafe condition need not arise out of a defect in the premises themselves, but may consist of a defect in the use of the building, such as a dangerous display of merchandise on the premises. See, e.g., Meek v. Wal-Mart Stores, Inc., 72 Conn. App. 467, 474, 806 A.2d 546, cert. denied, 262 Conn. 912, 810 A.2d 278 (2002); see also 2 Restatement (Second), Torts § 343, pp. 215-18 (1965).

It is reasonable to assume in this case that Wylie understood the defendant’s premises policy to provide him with protection from premises liability arising out of his business use of the property. If, hypothetically, the victim in this case had been injured by a dirt bike that Wylie had improperly stored on the insured premises, Wylie would have been liable to her under the law of premises liability. See Meek v. Wal-Mart Stores, Inc., supra, 72 Conn. App. 467. Even though the injury would not have arisen out of a defect in the premises as a building, it would have arisen out of a “use of the premises” as that phrase was defined in Edelman. It follows that, if Wylie’s dog was on the premises for the business purpose for which Wylie bought premises insurance, Wylie was entitled to coverage under the defendant’s policy.

The defendant argues for the opposite result on the basis of a series of cases from other jurisdictions. It is true that, in those cases, construing language identical to that in the present policy, courts have limited coverage to injuries arising out of the premises as premises. We need not decide whether we would agree with the conclusions reached in those cases because each of them is factually distinguishable. Several of the cases cited involve claims for coverage stemming from alleged misconduct that occurred at a location other than the insured premises. In Chesapeake Physicians v. Home Ins., 92 Md. App. 385, 608 A.2d 822, cert. denied, 328 Md. 446, 614 A.2d 973 (1992), a policyholder sought coverage for a tort action alleging negligent or intentional misrepresentations by the insured in the course of the insured’s business. Id., 388-89. That claim had no physical relationship to the insured premises and was unrelated to the purpose for which the premises were insured. In American Empire Supply Lines Ins. Co. v. Bay Area Cab Lease, Inc., 756 F. Sup. 1287 (N.D. Cal. 1991), coverage for the business office of a cab company was held not to include coverage for a sexual assault committed off the premises, in a cab owned by the insured. Id., 1288-90. In Harvey v. Mr. Lynn’s, Inc., 416 So. 2d 960, 962 (La. App. 1982), premises coverage for an office did not encompass alleged negligence in the staging of a fashion show elsewhere. In Shelter

Mutual Ins. Co. v. Shepherd, 928 S.W.2d 6, 8-9 (Mo. App. 1996), coverage was denied for alleged attorney malpractice unrelated to the insured premises. None of these cases is a persuasive precedent for a coverage dispute about an injury that concededly occurred on the insured premises.

The defendant also cites Reznichek v. Grall, 150 Wis. 2d 752, 442 N.W.2d 545 (Wis. App. 1989), in which coverage was denied for an injury that, while it occurred on the insured premises, involved alleged misconduct unrelated to the purpose of premises liability insurance. Id., 754. The insured had caused the victim to become infected with herpes. Id. It was conceded that the sexual transmission of disease was neither necessary nor incidental to the ownership, maintenance or use of the insured premises. Id., 756. Denial of coverage under those circumstances is entirely consistent with our holding in Edelman v. Pacific Employers Ins. Co., supra, 53 Conn. App. 54. Reznichek is not relevant to this case, in which the victim was on the premises for a legitimate business purpose.

We conclude that the premises liability policy that the defendant issued to Wylie included coverage for injuries that occurred on the insured premises whether or not the injuries were related to the premises as premises. In our view, if Wylie’s dog was on the premises for a business purpose, Wylie’s negligent failure to control his dog was incidental to his “ownership, maintenance or use of the insured premises . . . .” The policy does not require more than that.

B

The Reason for the Dog’s Presence at the Insured Premises

We now turn to the question of whether the plaintiffs have established, on the factual record, that Wylie’s dog was on the premises of Strictly Dirt for a business purpose rather than for Wylie’s personal pleasure. No matter how broadly we interpret the phrase “use of the premises,” we recognize that Wylie was insured only for business that Strictly Dirt conducted there. See id. While coverage should not have been denied because the dog was not a watchdog, it would properly have been denied if the dog was no more than Wylie’s pet.

In its memorandum of decision, the trial court addressed this question and concluded that the dog was on the insured premises only for Wylie’s personal pleasure. The court stated: “In the present action, the evidence establishes that the dog was not used for security purposes. Neither was the dog incidental to the ownership, maintenance or use of the insured premises or to the operations that were necessary or incidental to the insured premises. InaNovember 12,2001 deposition taken in connection with this action, Wylie testified that the dog . . . was his personal dog and was not owned or kept by Strictly Dirt, Inc. He testified that the dog accompanied him to work regularly, but was not a watchdog for the business or for the premises. Wylie also testified that his presence at Strictly Dirt, Inc., on the day of the dog attack was related entirely to his position as an employee of Strictly Dirt, Inc., and was unrelated to his role or responsibilities as owner-landlord of the premises.”

On the basis of these recited facts, the court concluded that “the injury for which coverage is sought did not arise out of Wylie’s ownership, maintenance or use of the insured premises and therefore was not covered by the [premises liability] policy issued to Wylie personally as owner of the premises.” It is telling that the court supported its reasoning by citing Bewig v. State Farm Fire & Casualty Ins. Co., supra, 848 S.W.2d 522, in which coverage was denied, at least in part, because the dog that bit the victim was a pet dog.

The trial court’s recital of the factual record was, however, incomplete. The court overlooked those parts of Wylie’s deposition in which he testified that the dog was on the premises for commercial purposes. Wylie stated that he took the dog to work because customers liked the dog. He had approved the use of a picture of the dog on a Strictly Dirt promotional sign facing Route 44. He viewed the dog’s presence as a benefit to the business of Strictly Dirt and would have stopped bringing the dog “[i]f he wasn’t a benefit . . . .” Wylie’s testimony establishes that the dog bite incident was “incidental” to Wylie’s business use of the insured premises.

In requesting summary judgment, the defendant conceded that there were no material factual disputes underlying the coverage dispute. Although it had an unrestricted opportunity to question Wylie at his deposition, it elicited nothing to contradict Wylie’s testimony about the reason for the dog’s presence on the insured premises.

We conclude therefore that, because the dog was on the premises for a business purpose, and because the victim was on the premises as a business invitee, the defendant was obligated to reimburse the plaintiffs for the costs incurred as a result of Wylie’s negligent failure to supervise his dog. Harking back to the language of the policy, we conclude that these costs were “sums which [Wylie became] legally obligated to pay as damages due to bodily injury ... to which this insurance applies. The bodily injury . . . [was] caused by an occurrence and . . . [arose] out of the . . . use of the insured premises or operations that are . . . incidental to the insured premises.”

C

The final issue that we must address is whether the coverage afforded to Wylie by the defendant’s insurance policy is primary or secondary to Wylie’s Hartford Casualty homeowner’s policy. In light of its resolution of the liability issues, the trial court had no occasion to consider the relationship between the two policies. We agree with the plaintiffs that the defendant’s policy was primary.

On this issue, Wylie’s policy with the defendant meshes seamlessly with Wylie’s policy with Hartford Casualty. Each makes the defendant’s coverage primary and the Hartford Casualty coverage excess. The defendant’s policy, in a section denominated “Insurance Under More Than One Policy,” states: “Insurance under this Commercial Liability Coverage is primary . . . .” The Hartford Casualty policy, in a section denominated “Other Insurance,” states: “This insurance is excess over other valid and collectible insurance except insurance written specifically to cover as excess over the limits of liability that apply in this policy.”

Although, on their face, these provisions unambiguously impose on the defendant the duty to reimburse the plaintiff Hartford Casualty for its costs of $236,956.72, the defendant would have us ignore the language of the policies. The defendant maintains that, because of Hartford Casualty’s decision to settle the dog bite litigation, its own policy must be construed to have provided only excess liability coverage.

According to the defendant, if the mere presence of the dog on the Strictly Dirt premises constituted “use” of the premises, the resulting injury would have been excluded from Hartford Casualty coverage because that policy did not cover “bodily injury . . . [a]rising out of a premises . . . [o]wned by the insured . . . that is not an insured location . . . .” In light of this exclusion, the defendant maintains that Hartford Casualty could not have settled the dog bite litigation without impliedly conceding that its coverage was primary rather than excess to that provided in the defendant’s policy. We disagree.

The flaw in the defendant’s argument is that we do not know why Hartford Casualty settled. The defendant has provided no evidentiary support for its analysis of the settlement. It is equally plausible, however, that Hartford Casualty settled because it interpreted its policy exclusion to apply only to ownership of other homeowner property, such as a vacation home. There may well have been other considerations as well.

The hypothetical argument posited by the defendant cannot overcome the unambiguous text of its own policy and that issued by Hartford Casualty. The defendant’s policy categorically establishes the primacy of the premises policy that it issued to Wylie.

We conclude, therefore, that the trial court improperly denied the plaintiffs’ motion for summary judgment and improperly granted the defendant’s motion for summary judgment. The plaintiffs have established that, pursuant to the premises liability insurance policy that the defendant issued to Wylie, they have a right to indemnification for the costs incurred in settling the underlying dog bite litigation. The dog bite took place on Strictly Dirt’s business premises at a time when Wylie, the owner of the premises and of Strictly Dirt, was using the premises for business purposes as contemplated by the insurance policy. The dog was on the premises for business purposes. The dog bite litigation was, therefore, as the policy required, “caused by an occurrence [that arose] out of the ownership ... or use of the insured premises . . . that [was] necessary or incidental to the insured premises.”

The judgment is reversed in part and the case is remanded with direction to grant the motion for summary judgment filed by the plaintiffs and to deny the motion for summary judgment filed by the defendant.

In this opinion the other, judges concurred.

       The defendant describes the commercial package that it issued to Wylie as an “Owners, Landlords & Tenant” policy, even though it is not so denominated in the policy itself. We describe it as a premises liability policy to distinguish it from a general liability policy.

       Hartford Casualty was a plaintiff because, pursuant to a homeowner’s insurance policy that it had issued to Wylie, it had settled the underlying litigation between the victim of the dog bite and Wylie.

       The plaintiffs alleged that the defendant had a duty (1) to provide coverage for the damages in the dog bite case, (2) to provide a defense for Wylie in that case, (3) to reimburse Hartford Casualty for sums paid in settlement of the dog bite case because the defendant was the primary insurer and (4) to reimburse Hartford Casualty under principles of unjust enrichment.

       The defendant had earlier agreed to provide a defense for Strictly Dirt, with the reservation that it would withdraw its defense if Strictly Dirt was not the owner of the dog. The plaintiffs’ complaint alleged that Wylie, not Strictly Dirt, was the owner of the dog.

       The victim was on the premises because she was accompanying her father, who was purchasing certain items from Wylie in his dirt bike store.

       At the end of its opinion, the court stated the following. “The court finds, accordingly, that [the defendant] is entitled to summary judgment as amatter of law because there is no genuine issue of material fact as to whether the [premises liability] policy issued to Wylie or to Strictly Dirt, Inc., covered [the victim’s] injuries.”

       We recognize that, ordinarily, the duly to defend an insured is broader than the duty to indemnify. See, e.g., Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 256, 819 A.2d 773 (2003). Ordinarily, all the relevant factual allegations are contained in the underlying complaint that triggers an obligation to defend. In this case, as noted, the dog bite victim had no occasion to allege the capacity in which the dog was on the premises. This is presumably the reason why the defendant has not argued, either in this court or at trial, that there is an irrebuttable linkage between the two counts in the plaintiffs’ complaint.

       The defendant acknowledges that the relevant text in Edelman is similar to the relevant text in the Wylie policy.

       Although this provision is subject to two exceptions, neither is applicable under the circumstances of this case. One exception is fire insurance for premises rented to the insured. The other is insurance for the maintenance or use of aircraft, motorized vehicles or watercraft.


author: PER CURIAM.

text:
    WANDA TRAPPE v. ROBERT D. BOLGARD
    (AC 23282)
    Dranginis, West and Hennessy, Js.
    Submitted on briefs October 30
    officially released December 2, 2003

      Wanda Trappe, pro se, the appellant (plaintiff), filed a brief.

      Christopher J. Hug and Edward J. Heath filed a brief for the appellees (defendants).
   Opinion

PER CURIAM.

The plaintiff, Wanda Trappe, appeals from the judgment of the trial court rendered after it granted the motion for summary judgment filed by the defendants, Robert D. Bolgard and Fleet Bank, N.A. On appeal, the plaintiff appears to claim that the court failed to consider evidence that would demonstrate that the defendants had engaged in a continuing concealment of facts, which barred the running of the statutes of limitation on her complaint.

Although we attempt to construe the rules of practice liberally in dealing with pro se litigants; see Rosato v. Rosato, 53 Conn. App. 387, 390, 731 A.2d 323 (1999); we simply cannot consider a claim when the plaintiff has provided the court with what amounts to a one page brief that is devoid of any legal authority for or analysis of her claim. We decline to review claims when “[n]othing more than [a] bare statement, without citation to legal authority, appears in [the appellant’s] brief. Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court.” (Internal quotation marks omitted.) Russell v. Russell, 61 Conn. App. 106, 108, 762 A.2d 523 (2000). “[F]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed. . . . [Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court. . . . Where the parties cite no law and provide no analysis of their claims, we do not review such claims.” (Internal quotation marks omitted.) Baris v. Southbend, Inc., 68 Conn. App. 546, 550-51, 791 A.2d 713 (2002). Accordingly, we decline to review the plaintiffs claim and deem it abandoned.

The judgment is affirmed.


author: WEST, J. FLYNN, J.,

text:
    STATE OF CONNECTICUT v. LUIS FERNANDO LOPEZ
    (AC 22637)
    Flynn, Bishop and West, Js.

      (One judge dissenting)
    Argued February 10
    officially released December 9, 2003

      William M. Bloss, for the appellant (defendant).

      John A. East III, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Jason Germain, assistant state’s attorney, for the appellee (state).
   Opinion

WEST, J.

The defendant, Luis Fernando Lopez, appeals from the judgment of conviction, rendered after a jury trial, of three counts of risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21 (2). On appeal, the defendant claims that (1) the trial court should have conducted an inquiry on the record and in his presence into whether a conflict of interest existed between him and his attorney, (2) the court improperly failed to conclude that defense counsel was burdened by an actual conflict of interest, (3) the court should have granted him a new trial on the ground that the verdict was inconsistent, and (4) the prosecutor’s comments during closing argument were improper and amounted to misconduct sufficient to warrant a new trial. We agree with the defendant’s first claim and, accordingly, reverse the judgment of conviction and remand the case for a new trial. Because our resolution of that claim disposes of the defendant’s appeal, we need not address the remaining claims.

The following facts axe relevant to our disposition of the issues raised on appeal. In March, 1999, the victim and her mother moved into the defendant’s home. The defendant and the victim’s mother were romantically involved at that time. The defendant and the victim’s mother shared one bedroom while the victim slept in a separate bedroom. The defendant used the victim’s bedroom as his business office and kept his computer there.

The victim alleged that soon after she moved into the defendant’s home, he began molesting her by touching her inappropriately. The victim claimed that this behavior occurred frequently, and she provided descriptions of three such incidents. The first such alleged incident occurred in March, 1999, when the victim had gone to her bedroom, where the defendant was working on the computer, to ask for assistance with her homework. After the defendant declined to help her, the victim went to her bed to work on her assignment. She alleged that the defendant then went to the bed, pinned her arms over her head and rubbed her groin with his free hand. That alleged touching occurred over the victim’s clothing. The second occurrence was in April, 1999. At that time, the defendant approached the victim while she was sitting on her bed. He allegedly kissed the victim on the face and again rubbed her groin over her clothing. The third alleged incident also occurred in April, 1999. The victim claimed that the defendant had approached her while she was standing in her bedroom and “touched [her] in the comer.”

The alleged molestation came to light when the victim disclosed it to several friends during a school field trip. A teacher’s aide overheard the victim’s conversation and confronted her with the information. The victim confirmed the allegations, but requested that the aide not tell anyone else. The aide, nevertheless, notified the victim’s teacher and the school principal. The principal then notified the victim’s mother and the department of children and families.

A worker from the department of children and families interviewed the victim. During the interview, the victim repeated her allegations of abuse. The defendant subsequently was arrested and charged with three counts each of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (A), sexual assault in the third degree in violation of § 53a-72a (a) (1) (B) and risk of injury to a child in violation of § 53-21 (2). Following a jury trial, the defendant was acquitted of all of the sexual assault charges and convicted of each of the risk of injury charges. Additional facts will be set forth as necessary.

I

We first address the defendant’s challenge to the adequacy of the court’s inquiry into a possible conflict of interest between himself and defense counsel. We agree with the defendant that the inquiry was inadequate.

The following additional facts are relevant to the defendant’s claim. The victim made certain statements that were inculpatory as to the defendant and that were the basis for the state’s bringing the charges of which he was convicted. Prior to trial, however, the victim wrote and signed a statement recanting her previous accusations against the defendant. The victim testified that she did so at the insistence of her mother and the defendant. She further testified that the defendant dictated the statement to her and that she was angry that she was forced to write the statement because it was untrue.

After the victim had written a statement recanting her accusations, the victim’s mother and the defendant brought her to the office of the defendant’s trial counsel, attorney Christopher W. Boylan. The victim later testified that she had had a private conversation with Boy-lan, during which she told him that her handwritten statement was the truth. The victim’s statement was then typed on stationery bearing Boylan’s letterhead. The victim signed the typewritten statement, and Boy-lan acknowledged the statement as an officer of the Superior Court. At trial, she testified that she had been forced to make the statements, which were not true.

“Before reviewing the defendant’s claim, we underscore that our review is of the actions of the trial court, not of the actions of defense counsel. Almost without exception, we have required that a claim of ineffective assistance of counsel ... be raised by way of habeas corpus, rather than by direct appeal, because of the need for a full evidentiary record for such [a] claim. . . . On the rare occasions that we have addressed an ineffective assistance of counsel claim on direct appeal, we have limited our review to allegations that the defendant’s sixth amendment rights had been jeopardized by the actions of the trial court, rather than by those of his counsel. . . . We have addressed such claims, moreover, only whe[n] the record of the trial court’s allegedly improper action was adequate for review or the issue presented was a question of law, not one of fact requiring further evidentiary development. . . . Our analysis, therefore, is restricted to the actions of the trial court . . . .” (Internal quotation marks omitted.) State v. Drakeford, 261 Conn. 420, 428, 802 A.2d 844 (2002).

“The sixth amendment to the United States constitution as applied to the states through the fourteenth amendment, and article first, § 8, of the Connecticut constitution, guarantee to a criminal defendant the right to [the] effective assistance of counsel. . . . Where a constitutional right to counsel exists . . . there is a correlative right to representation that is free from conflicts of interest.” (Internal quotation marks omitted.) State v. Cator, 256 Conn. 785, 793, 781 A.2d 285 (2001), quoting State v. Crespo, 246 Conn. 665, 685, 718 A.2d 925 (1998), cert. denied, 525 U.S. 1125, 119 S. Ct. 911, 142 L. Ed. 2d 909 (1999). “To safeguard a criminal defendant’s right to the effective assistance of counsel, a trial court has an affirmative obligation to explore the possibility of conflict when such conflict is brought to the attention of the trial [court] in a timely manner. See Holloway v. Arkansas, [435 U.S. 475, 485-86, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978)]; Festo v. Luckart, [191 Conn. 622, 627, 469 A.2d 1181 (1983)].” (Internal quotation marks omitted.) State v. Vega, 259 Conn. 374, 389, 788 A.2d 1221, cert. denied, 537 U.S. 836, 123 S. Ct. 152, 154 L. Ed. 2d 56 (2002). “To be meaningful, an inquiry must be thorough and searching.” Festo v. Luckart, supra, 628.

“There are two circumstances under which a trial court has a duty to inquire with respect to a conflict of interest: (1) when there has been a timely conflict objection at trial ... or (2) when the trial court knows or reasonably should know that a particular conflict exists . . . .” (Internal quotation marks omitted.) State v. Cator, supra, 256 Conn. 793-94; quoting State v. Crespo, supra, 246 Conn. 686. In discharging that duty, however, “the trial court must be able, and be freely permitted, to rely upon [defense] counsel’s representation that the possibility of such a conflict does or does not exist. . . . The reliance in such an instance is upon the solemn representation of a fact made by [the] attorney as an officer of the court. . . . The course thereafter followed by the court in its inquiry depends upon the circumstances of the particular case.” (Citations omitted; internal quotation marks omitted.) State v. Martin, 201 Conn. 74, 82, 513 A.2d 116 (1986).

The first mention of any alleged conflict of interest on the part of defense counsel is found in the defendant’s motion for a new trial and for a judgment of acquittal, filed on June 11, 2001. In that motion, the defendant claimed that he “was deprived of representation of conflict-free counsel at the trial, in light [of] defense counsel [putting] himself in the position of being a material defense witness . . . .” In its memorandum of decision denying the defendant’s motion, filed October 30, 2001, the court memorialized the events forming the basis of the present claim. The court recounted that “[t]he state informed the court, outside of the defendant’s presence and off the record, that the defense counsel may intend to testify at trial. The trial judge in chambers asked defense counsel if he intended to testify and whether a new attorney should be obtained to represent the defendant. After consideration by defense counsel, he informed the judge that he did not intend to testify on behalf of the defendant.”

On the basis of that record, it is clear that the possibility of a conflict of interest was sufficiently apparent to impose on the court a duty to inquire further. As the court’s account makes clear, however, all that was established was that counsel did not plan to testify. Under no possible interpretation of the facts presented on the record can the court’s inquiry be described as “thorough and searching.” Festo v. Luckart, supra, 191 Conn. 628. There is nothing in the record to indicate that the court inquired into the specific contours of the alleged conflict of interest. The court merely stated that it was informed that defense counsel might be planning to testify. There is no indication that the court inquired into the specific matters about which that anticipated testimony was concerned. There is also no indication that the court satisfied itself that the underlying circumstance prompting the state’s inquiry regarding the possibility that defense counsel would testify did not, in fact, present at least a potential conflict. The prosecution’s disclosure that defense counsel could be a potential witness in the case should have alerted the court, at a minimum, to the possibility that a conflict might exist regardless of whether defense counsel actually testified. Far from establishing that the attorney was not burdened by a conflict, the court’s inquiry involved only how that potential conflict was going to be addressed.

We recognize that “[a]bsent any reason to the contrary, the trial court may rely on the defendant’s attorney’s representation that there is no conflict, and it has no obligation to conduct any further inquiry into the subject.” State v. Cator, supra, 256 Conn. 795. In the present case, however, counsel did not assert that there was no conflict. He also did not assert that his representation of the defendant would not be compromised at trial. Defense counsel merely stated that he would not testify. Because the defendant was not present during that inquiry, we cannot conclude that he consented to waiving a claim of conflict,.

The victim’s credibility obviously was an important issue in the case. The jury was presented with physical evidence that the victim had recanted her accusations against the defendant. The victim testified that the exculpatory statement was not true and that it was not the product of her free will. Nevertheless, the victim also testified that her parents had brought her to Boy-lan’s office and that she met alone with Boylan to discuss her recantation. She testified that Boylan had asked her if her statement recanting the allegations against the defendant was truthful, and she had responded that the statement was truthful. After assuring the defendant’s attorney that the statement was true, the victim had signed a typewritten copy of that statement in the attorney’s office. At no point during her testimony did she indicate that Boylan had coerced her in any way into signing the statement.

In light of the victim’s testimony that she was coerced by her mother and the defendant into falsely recanting her accusations, testimonial evidence of her demeanor while at Boylan’s office may have been potentially beneficial to the defendant. Given the substance of the victim’s testimony, however, it also may have been a wise trial strategy to leave well enough alone and leave the jury with the image of the victim freely affirming to Boylan the truthfulness of her recantation, outside of the presence of the defendant and her mother.

Nevertheless, we are persuaded that the circumstances of Boylan’s involvement present a situation in which the actual conflict of interest is clear. Boylan was a witness to a writing about which there was much testimony. Notwithstanding the strategic merits of counsel’s testifying, we are concerned that the testimony regarding defense counsel’s role in securing and witnessing the victim’s statement may have affected his credibility with the jury. Even in the absence of allegations of wrongdoing on his part, the jury could view defense counsel as the defendant’s accomplice in securing the victim’s statement.

As the United States Supreme Court has stated in the context of joint representation of multiple defendants, such representation “is [inherently] suspect because of what it tends to prevent the attorney from doing. . . . [A] rule requiring a defendant to show that a conflict of interests . . . prejudiced him in some specific fashion would not be susceptible of intelligent, even-handed application. . . . [I]n a case of joint representation of conflicting interests the evil ... is in what the advocate finds himself compelled to refrain from doing .... It may be possible in some cases to identify from the record the prejudice resulting from an attorney’s failure to undertake certain trial tasks, but even with a record of the sentencing heating available it would be difficult to judge intelligently the impact of the conflict on the attorney’s representation of a client. And to assess the impact of a conflict of interests on the attorney’s options, tactics, and decisions . . . would be virtually impossible.” (Citations omitted; emphasis added.) Holloway v. Arkansas, supra, 435 U.S. 489-91.

The problems posed by the conflicted representation in the present case pose the same difficulties as those involved in cases of joint representation of multiple criminal defendants, as set forth in Holloway. It is impossible to determine what role defense counsel’s involvement in securing the victim’s recantation played in the making of strategic choices during trial. His involvement may have weighed particularly with respect to his decision not to testify as a material witness regarding the victim’s demeanor while preparing her statement and the lack of vigorous cross-examination on that issue. It is also impossible to determine what Boylan’s testimony would have been had he chosen to testify. Thus, to require the defendant to show an actual adverse consequence resulting from the conflicted representation would saddle him with an insurmountable obstacle to securing relief. See id., 490-91.

Because the defendant raised the issue of the extent to which the United State Supreme Court abandoned the automatic reversal rule in Mickens v. Taylor, 535 U.S. 162, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002), and the impact of any such change on the law of our jurisdiction, we briefly discuss the applicability of Mick-ens to the present case. Mickens is both substantively and factually distinguishable from the present case. In the first instance, Mickens was a habeas case that necessarily focused on the adequacy of defense counsel’s representation at trial. As we stated previously, the focus of our review in the present case is not the adequacy of counsel’s representation during trial, but rather the adequacy of the court’s response to defense counsel’s conflict of interest when that conflict was brought to the court’s attention. Moreover, the trial court in Mickens was not aware of trial counsel’s conflict of interest, nor did it have any reason to be aware of such conflict. Id., 165. That conflict was discovered by the defendant’s habeas counsel only after the trial. Id. Thus, Mickens did not involve a situation in which the court’s duty of inquiry had been triggered.

To the extent that the court in Mickens nevertheless discussed the automatic reversal rule as framed by Hol loway v. Arkansas, supra, 435 U.S. 475, and subsequent cases, the court left Holloway’s holding intact. The court did note that in Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980), it declined to extend Holloway’s automatic reversal in the context of multiple representation of codefendants where no objection to that representation had been raised at trial. The court distinguished Sullivan from Holloway in that “no special circumstances triggered the trial court’s duty of inquiry.” (Internal quotation marks omitted.) Mickens v. Taylor, supra, 535 U.S. 169, quoting Cuyler v. Sullivan, supra, 346. The Cuyler court held that absent some objection raised at trial that would alert the court to the possibility of a conflict, the mere circumstance of joint representation was not itself sufficient to trigger the court’s duty of inquiry. The Mickens court also discussed Wood v. Georgia, 450 U.S. 261, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981). In that case, the Supreme Court remanded the case for an inquiry into a conflict of interest where the defendants had been represented by the attorney for their employer and the employer had paid the attorney’s fees. Mickens explained Wood’s rationale for remanding for further inquiry into the possibility of conflict rather than remanding for a new trial by explaining that in Wood, the conflict merely was theoretical and that it could not be presumed that such a theoretical conflict actually affected the adequacy of counsel’s representation.

We believe the present case presents a circumstance in which the structural integrity of the trial is more obviously compromised than was the case in Wood. In Wood, the theoretical conflict involved the possibility that to the extent that the interest of the defendants and their employer diverged, the defense attorney’s representation would be compromised. In the present case, by contrast, we have identified an actual conflict as a result of defense counsel’s position as a material witness in the case.

Given those considerations, we find that the court did not fulfill its obligation of conducting a thorough and searching inquiry into the potential conflict brought to its attention by the prosecution, and we conclude that under the circumstances presented by this case, prejudice resulting from trial counsel’s conflict may be presumed. Accordingly, pursuant to the principles articulated in Holloway v. Arkansas, supra, 435 U.S. 475, we reverse the judgment of conviction.

II

The defendant also claims that defense counsel was burdened by an actual conflict of interest that adversely affected his performance and, therefore, a new trial should be ordered. Because we concluded in part I that the court’s inquiry into a potential conflict was inadequate and that the nature of the conflict was such that prejudice to the defendant could be presumed, we need not reach the issue of whether defense counsel was burdened by an actual conflict that adversely affected his performance. When a conflict is shown and the court does not conduct an adequate inquiry, reversal is mandated when prejudice can be presumed from the nature of the conflict. See generally id.

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

In this opinion BISHOP, J., concurred.

FLYNN, J.,

dissenting. I respectfully disagree with and dissent from the majority’s decision automatically reversing the defendant’s conviction without a showing of harm to him.

“In its recent decision in Mickens v. Taylor, [535 U.S. 162, 166, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002)], the United States Supreme Court reaffirmed the general rule that, in order to demonstrate a sixth amendment violation based on the trial court’s failure to inquire into a potential conflict of interest about which it knew or should have known, a defendant must establish that the conflict of interest adversely affected his counsel’s performance.” (Emphasis added.) State v. Parrott, 262 Conn. 276, 287, 811 A.2d 705 (2003). Ordinarily, this cannot be established by direct appeal, but only by way of habeas corpus. State v. Crespo, 246 Conn. 665, 687-88, 718 A.2d 925 (1998), cert. denied, 525 U.S. 1125, 119 S. Ct. 911, 142 L. Ed. 2d 909 (1999).

I concede that there is an exception to this general rule creating a presumption that harm occurred to the defendant. Compare Holloway v. Arkansas, 435 U.S. 475, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978). However, that exception exists only in cases of dual representation by one attorney of more than one defendant in the same case. That did not occur. Accordingly, I do not agree that the Holloway exception should be allowed to subsume the general rule.

For that reason, I dissent.

       General Statutes (Rev. to 1999) § 53-21 provides in relevant part: “Any person who ... (2) has contact with the intimate parts ... of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child . . . shall be guilty of a class C felony.”
      Conviction of a class B felony subjects an individual to a possible fine not to exceed $15,000; General Statutes § 53a-41; andpossible imprisonment for a term not less than one year nor more than twenty years. General Statutes § 53a-35a (5).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse, we decline to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

       William M. Bloss, who is now the defendant’s appellate counsel, filed that motion in lieu of Boylan.

       Although the inquiry into the possibility that defense counsel had a conflict of interest was conducted in chambers and off the record, we have no reason to doubt that it proceeded as represented by the court. Even if we accept that premise, however, the inquiry fails to satisfy the basic required elements. Most importantly, the inquiry did not provide the necessary information from which the court reasonably could conclude that there was no conflict in the defendant’s attorney continuing his representation.

       We note that because the colloquy between the court and defense counsel was conducted off the record, we are necessarily at a disadvantage as to the details of what occurred.

       We recognize that our Supreme Court has discussed Mickens in the context of a direct appeal challenging the adequacy of a trial court’s conflict of interest inquiry. See State v. Parrott, 262 Conn. 276, 282, 811 A.2d 705 (2003). The court’s holding in Parrott, however, was based on the finding that the trial court’s inquiry into the potential conflict was adequate. Id., 289. Thus, the court never reached the question of whether a showing of deficient performance or adverse consequence flowing from such deficiency is necessary when a conflict is brought to the court’s attention.


author: DRANGINIS, J.

text:
    CITY OF NORWALK v. JAMES J. FARRELL, JR.
    (AC 22470)
    Schaller, Dranginis and Stoughton, Js.

      Argued March 17
    officially released December 9, 2003

      James J. FarrellHI, pro se, the appellant (defendant).

      Marc J. Grenier, for the appellee (plaintiff).

      Robert F. Maslan, Jr., pro se, the committee.
   Opinion

DRANGINIS, J.

This real estate tax foreclosure action was instituted by the plaintiff, the city of Norwalk, against the defendant James J. Farrell, Jr., and, subsequently, against Sperry A. DeCew, administrator cum testamento annexo of the estate of James J. Farrell, Jr., and against James J. Farrell III and Patricia Farrell-Kowalonek. James J. Farrell III is the only defendant involved in the present appeal. He appeals from the judgment of the trial court requiring him to pay $2803.60 in fees to Robert F. Maslan, Jr., an attorney, who was appointed by the court to serve as the committee for the sale of the real property that is the subject of the foreclosure action (committee). On appeal, James J. Farrell III claims that the court had no authority to require him to pay the committee’s fees. We agree and, accordingly, reverse the judgment of the trial court.

The relevant facts and procedural history are as follows. In December, 1996, the plaintiff commenced this foreclosure action against James Farrell, Jr., who, apparently, had died in 1995. Subsequently, a judgment of default entered against James Farrell, Jr., for failure to appear. On May 19, 1997, the court rendered a judgment of strict foreclosure and set a law day of June 24, 1997. When the plaintiff learned that James Farrell, Jr., was deceased, it moved to open the judgment of foreclosure for puiposes of naming, as party defendants, the administrator of the estate of James J. Farrell, Jr., and James J. Farrell III and his sister, Patricia Farrell-Kowa-lonek. The defendant and his sister were the children of the named defendant and jointly had inherited the subject property.

On May 10, 1999, the court ordered a foreclosure by sale and set a sale date of September 18, 1999. Also, at that time, the court appointed Maslan to act as the committee responsible for the sale of the property and issued orders relating to the sale. As a result of several motions to open the judgment of foreclosure, all of which were filed by the defendant’s sister, Farrell-Kowalonek, the court amended the sale date to April 29, 2000, then to September 30, 2000, and, finally, to November 4, 2000. Days before the November 4, 2000 sale was scheduled to occur, the defendant redeemed the property by paying the outstanding property taxes. On December 6, 2000, the committee filed a motion, requesting the court to order the plaintiff to pay the committee’s fees pursuant to General Statutes § 49-25, which the court granted on December 18, 2000.

On January 19, 2001, the defendant filed a motion for an order concerning committee fees in which he asked the court to order the plaintiff to file a withdrawal of the foreclosure action and to provide him with a release of lis pendens. In his motion, the defendant maintained that although he had redeemed the property, the plaintiff refused to withdraw the foreclosure action and to provide a release of lis pendens until the defendant paid the committee’s fees. He further maintained that because those fees were unreasonable, excessive and in violation of the court’s order concerning the committee’s rights and duties, neither the plaintiff nor the defendant should be required to pay the fees. Also, on that same date, the defendant filed a motion to reargue the committee’s motion for fees, claiming, again, that the fees were unreasonable, excessive and violative of the court’s order. On January 31,2001, the court granted the defendant’s motion to reargue.

On February 26, 2001, the committee filed an objection to the defendant’s motion for an order concerning committee fees, arguing that its fees were incurred for work that is required of a committee in a foreclosure action. On May 31, 2001, the plaintiff filed a request to set a new sale date in which it contended that the court should set a new sale date because the defendant had failed to redeem in accordance with the judgment of foreclosure by paying the committee’s fees. On September 24, 2001, the court ordered that all matters would be heard on October 9, 2001. At that time, there were four outstanding matters to be addressed by the court: (1) reargument on the committee’s motion for fees, (2) the defendant’s motion for an order, (3) the committee’s objection to that motion and (4) the plaintiffs request to set a new sale date. At the October 9, 2001 hearing, the defendant argued that the committee’s fees were excessive and violative of the court’s orders regarding the sale, and that if the plaintiff wanted the defendant to pay the committee’s fees, it should have filed a bill of costs rather than a request to set a new sale date. After the hearing, the court ordered the defendant to pay the committee’s fees within thirty days. The court wrote its order on the plaintiffs request for a new sale date. The judgment of the court provides, however, that it was rendered against the defendant and in favor of the committee.

On November 2, 2001, the defendant filed the present appeal from the judgment of the court requiring him to pay the committee’s fees. Thereafter, the plaintiff and the committee filed a motion to dismiss the defendant’s appeal, claiming that the appeal was untimely. This court denied the motion to dismiss and, sua sponte, ordered the parties to this appeal to address in their appellate briefs whether the committee has standing to participate as an appellee in this appeal. Additional facts will be set forth as necessary.

I

As an initial matter, we first turn to the issue that we ordered the parties to this appeal to brief, namely, whether the committee has standing to participate as an appellee in this appeal. After carefully reviewing the briefs and the law, we conclude that the issue is not one of standing but, rather, the issue is whether the committee, a nonparty to the underlying foreclosure action, may, as of right, participate in this appeal as an appellee. We conclude that the committee may not do so.

The plaintiff concedes that the committee was not a party to the underlying foreclosure action. “A committee of sale functions as an arm of the court in a judicial sale. The committee conducting a sale is an agent or representative of the court.” (Internal quotation marks omitted.) Citicorp Mortgage, Inc. v. Burgos, 227 Conn. 116, 123, 629 A.2d 410 (1993). “The interests of a committee of sale are ordinarily represented by a party to the suit. Second, National Bank of New Haven v. Burtchell, 166 Conn. 388, 349 A.2d 831 (1974f” Hartford Federal Savings & Loan Assn. v. Tucker, 13 Conn. App. 239, 251, 536 A.2d 962, cert. denied, 207 Conn. 805, 540 A.2d 373 (1988); see also General Statutes § 49-25. In the present case, the plaintiff represents the interests of the committee. The plaintiff contends, nonetheless, that the committee has a right to defend this appeal as an appellee. It is axiomatic that “[e]veiy appeal requires opposing parties, at least one appellant and one appellee. The term ‘appellant’ refers to a party who seeks review of alleged lower court error in the rendering of a decision adverse to that party’s interests. The term ‘appellee’ generally denotes the party opposing review who prevailed in the lower court.” (Emphasis added.) 5 Am. Jur. 2d 41-42, Appellate Review § 268 (1995). We conclude that because the committee was not a party to the underlying proceeding, it is, by definition, not an appellee.

Moreover, our rules of appellate procedure contemplate that only parties may appear and participate in an appeal as of right. See, e.g., Practice Book § 62-8 (“[cjounsel for all parties in the trial court shall be deemed to have appeared in the appeal”); Practice Book § 62-10 (providing that appellate court file shall be made available to parties); Practice Book § 67-1 (providing that in any brief, “the plaintiff and defendant shall be referred to as such rather than as appellant and appel-lee”). By expressly providing that counsel for the parties are deemed to have appeared and by expressly providing the parties with the right to file written briefs, it is clear that the rules do not provide such rights to nonparties. See Thalheim v. Greenwich, 256 Conn. 628, 645, 775 A.2d 947 (2001). We therefore conclude that the committee may not participate in this appeal as an appellee.

II

We now turn to the claim raised by the defendant in this appeal. He claims that the court had no authority to order him to pay the committee’s fees. Specifically, the defendant contends that the court lacked authority to order him to pay the committee’s fees because the plaintiff failed to submit a bill of costs as required by Practice Book § 18-5. We agree that the court lacked authority to order the defendant to pay the committee’s fees.

Our standard of review is well settled. Whether a court has authority to order a defendant in a foreclosure case to pay the committee’s fees requires an interpretation of the relevant statutes and provisions of our mies of practice. “Statutory construction . . . presents a question of law over which our review is plenary. . . . According to our long-standing principles of statutory construction, our fundamental objective is to ascertain and give effect to the intent of the legislature. ... In determining the intent of a statute, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Citation omitted; internal quotation marks omitted.) Opoku v. Grant, 63 Conn. App. 686, 690, 778 A.2d 981 (2001).

General Statutes § 49-25 provides in relevant part: “When the court in any such proceeding is of the opinion that a foreclosure by sale should be decreed, it shall, in its decree, appoint a person to make the sale and fix a day therefor, and shall direct whether the property shall be sold as a whole or in parcels, and how the sale shall be made and advertised .... If the plaintiff is the purchaser at sale, or if the property is redeemed at any time prior to the approval of the sale, or if for any reason the sale does not take place, the expense of the sale . . . shall be paid by the plaintiff and be taxed with the costs of the case. . . .” (Emphasis added.) Committee fees are a component of the expense of the sale. See Hartford Federal Savings & Loan Assn. v. Tucker, supra, 13 Conn. App. 246.

It is clear from the language of § 49-25 that it is the plaintiff, and not the defendant, that is hable for the expense of an aborted sale, which may then be taxed as part of the plaintiffs costs. Although the legislative history for § 49-25 is unavailable because of the early date of its enactment, this court previously has determined that “[t]he purpose of the legislative authorization [for committee fees] is to provide an award to a committee of sale, which is appointed by the court pursuant to a decree of judicial sale, in order that the committee may fulfill its obhgation in making the sale and be reimbursed for its efforts. ” Id., 249.

Even in cases where a sale does not occur and there are, therefore, no sale proceeds from which the committee may be paid, “a committee of sale has expended money, time and effort in performing its duties. . . . Absent fraud or fault on the part of a committee of sale, the committee should be compensated for its efforts and reimbursed for its expenses associated with those acts in furtherance of its obligations, whether or not such acts eventually culminate in a completed sale.” Id., 250. If not for § 49-25, there would be no source from which the committee could recoup such fees and expenses. The statute appropriately requires that the plaintiff serve as the source from which the committee may recoup its fees and expenses because it is the plaintiff who has called on the court to provide a remedy for collecting on hens by way of foreclosure.

The plaintiff may, in turn, seek to recoup the expenses it has incurred as a result of the services provided by the committee by taxing those expenses as costs in a bill of costs, which it may file pursuant to Practice Book § 18-5. Practice Book § 18-5 provides: “(a) Costs may be taxed by the clerk in civil cases fourteen days after the filing of a written bill of costs provided that no objection is filed. If a written objection is filed within the fourteen day period, notice shall be given by the clerk to all appearing parties of record of the date and time of the clerk’s taxation. The parties may appear at such taxation and have the right to be heard by the clerk.

“(b) Either party may move the judicial authority for a review of the taxation by the clerk by filing a motion for review of taxation of costs within twenty days of the issuance of the notice of taxation by the clerk.” (Emphasis added.)

Here, the plaintiff failed to take advantage of the procedure by which it properly could recoup its expenses for the committee’s services by filing a bill of costs pursuant to Practice Book § 18-5. Despite the plaintiffs failure to file a bill of costs, the court, nonetheless, ordered the defendant to pay the committee’s fees. In so doing, the court deprived the defendant of the protections afforded him by Practice Book § 18-5, including the opportunity to object to the bill of costs, and the opportunity to be heard by the clerk and to seek further review by the judicial authority. Additionally, the court relieved the plaintiff of its burden of proving that it was entitled to be reimbursed for that expense. See Danbury v. Dana Investment Corp., 257 Conn. 48, 55-56, 776 A.2d 438 (2001).

We conclude that the court had no authority to order the defendant to pay the committee’s fees. Section 49-25 expressly requires that the plaintiff shall pay the expenses of the sale, including committee fees, where, as here, the sale does not take place; it does not permit the court to order the defendant to pay those expenses. Furthermore, costs may be taxed against the nonpre-vailing party, in this case the defendant, pursuant to Practice Book § 18-5, only after the filing of a written bill of costs. Because the plaintiff in the present case failed to submit a bill of costs as required by Practice Book § 18-5, the court had no authority to tax the plaintiffs costs of the sale against the defendant.

The judgment is reversed only as to the order that the defendant pay fees to the committee and the case is remanded for further proceedings in accordance with law. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       Because we conclude that James J. Farrell Ill’s first claim is dispositive of this appeal, we decline to address his additional claims, namely, that (1) the committee’s fees violated the judgment of foreclosure and that the fees were unauthorized and excessive, and (2) the court’s award of damages to the committee constituted plain error.

       Because only the defendant James J. Farrell III is involved in this appeal, we refer to him in this opinion as the defendant.

       Those orders related to when the committee was permitted to incur costs in preparation for the sale, to advertise the sale and to erect a sign on the property.

       Farrell-Kowalonek paid fees totaling $1691.22 to the committee for work it performed until the first sale date. Those fees are not challenged here.

       The defendant explained that his motion was untimely because he did not receive notice of the fact that the court had granted the committee’s motion for fees until January 9, 2001.

       We note that in its objection to the defendant’s motion, the committee failed to cite any authority in our rules of practice that expressly permits a committee, a nonparty to the foreclosure action, to file an objection to the motion of a party- Our review of the rules of practice reveals no such authority.

       The record discloses that the motion to dismiss was filed by the committee. Although counsel for the plaintiff did not sign the motion, the plaintiffs counsel subsequently provided this court with a letter indicating that the plaintiff supported and joined in that motion.

       It is the appellant who must have standing to invoke the jurisdiction of this court. See General Statutes § 52-263; see also Rayhall v. Akim Co., 263 Conn. 328, 340, 819 A.2d 803 (2003). “[A] party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim. . . . Standing is the legal right to set judicial machinery in motion.” (Emphasis added; internal quotation marks omitted.) Fleet National Bank v. Nazareth, 75 Conn. App. 791, 793, 818 A.2d 69 (2003). It is clear that this court has subject matter jurisdiction over the present appeal because the party asserting the claim, the defendant appellant, did have the legal right to set judicial machinery in motion, or standing.

       Our rules of procedure provide a vehicle for a nonparty to participate in an appeal as an amicus curiae. Witty v. Planning & Zoning Commission, 66 Conn. App. 387, 396, 784 A.2d 1011, cert. denied, 258 Conn. 950, 788 A.2d 100 (2001). Practice Book § 67-7 is that vehicle. It provides in relevant part: “A brief of an amicus curiae in cases before the court on the merits may be filed only with the permission of the court. . . . The application shall state concisely the nature of the applicant’s interest and the reasons why a brief of an amicus curiae should be allowed. . . .”
      In the present case, the committee, a nonparty to the underlying foreclosure action, failed to obtain, or even to seek, this court’s permission to participate in this appeal as an amicus curiae. We, therefore, decline to treat the committee as an amicus curiae for purposes of this appeal. Cf. Hartford Federal Savings & Loan Assn. v. Tucker, supra, 13 Conn. App. 251 n.8 (issue whether committee had standing to bring cross appeal). Although the committee signed the appellee’s brief and was allowed to participate in oral argument, we have decided the issues in this appeal on the basis of the arguments raised by the parties, namely, the plaintiff, the city of Norwalk, and the defendant.

       The plaintiff urges this court to decline to review the defendant’s claim and to affirm the judgment on the ground that the defendant has failed to provide us with an adequate record for review; see Practice Book § 61-10; because the defendant has failed to seek articulation of the trial court’s decision. Because we conclude that the question of whether the court had authority to require the defendant to pay the committee’s fees, where the plaintiff failed to file a bill of costs, is purely a question of law warranting plenary review, the legal analysis undertaken by the trial court is not essential to this court’s consideration of the issue on appeal. See Niehaus v. Cowles Business Media, Inc., 263 Conn. 178, 184, 819 A.2d 765 (2003). Accordingly, we decline to conclude that the record is inadequate for review.

       Additionally, the defendant contends that in ordering him to pay the committee’s fees, the court rendered judgment in favor of a nonparty, which it had no authority to do. Because our determination that the court lacked authority to order the defendant to pay the committee’s fees in the first instance is dispositive, we decline to review the defendant’s additional claim.

       We note that the record discloses that since the time this appeal was taken, the plaintiff has filed a bill of costs pursuant to Practice Book § 18-5, and the defendant has filed an objection. The trial court, however, has held that bill of costs in abeyance pending resolution of this appeal.