author: BISHOP, J.

text:
    WILLIAM KUMAH ET AL. v. LEO BROWN ET AL.
    (AC 32977)
    Bishop, Lavine and Robinson, Js.

      Argued May 23
    officially released July 26, 2011

      Kathleen Eldergill, for the appellants (plaintiffs).

      Kate J. Boucher, with whom was Michael Kenny, for the appellees (named defendant et al.).
   Opinion

BISHOP, J.

In this negligence action, the plaintiffs, William Kumah (Kumah) and Keziah Kumah, appeal from the summary judgment of the trial court rendered in favor of the defendants Leo Brown and Swift Transportation Company, Inc. On appeal, the plaintiffs claim that the court improperly determined that, as a matter of law, the defendants’ actions were not the proximate cause of the plaintiffs’ injuries. We affirm the judgment of the trial court.

The record reveals the following undisputed facts and procedural history. At 1:50 a.m. on September 3, 2006, Brown was operating a tractor trailer truck in a southerly direction on the Mianus River Bridge on Interstate 95 in Greenwich. He lost control of the tractor trailer, struck a Jersey barrier and bridge railing, and eventually came to a stop in the right and center lanes of Interstate 95. The impact caused approximately thirty-five gallons of diesel fuel to leak onto the highway. In addition to the state police, emergency vehicles from the Greenwich fire department, the Cos Cob volunteer fire police patrol (Cos Cob patrol) and the Connecticut department of environmental protection responded to the scene. Several rear-end collisions occurred in the ensuing traffic jam, and the emergency responders temporarily closed Interstate 95 while the Cos Cob patrol set up an emergency traffic pattern. The Cos Cob patrol parked its fire truck diagonally, with its lights illuminated, across the center and right lanes of Interstate 95 and also placed safety cones and flares along the approach diagonally to direct traffic into the left lane. Brown’s truck also was removed from the traveled portion of the highway during this time. With the traffic pattern in place, the left lane was reopened while the emergency responders continued to clean up the diesel fuel spill. Subsequently, the traffic jam fully dispersed. Thereafter, at 4:10 a.m., Kumah, who was approaching the scene of the accident southbound in his automobile, skidded through the safety cones, rotated and collided with the parked fire truck and then the bridge railing, sustaining severe physical injuries as a result.

Subsequently, the plaintiffs commenced this action against the defendants. In support of their claims, the plaintiffs alleged that Brown was negligent in his operation of the tractor trailer truck and that they suffered physical injuries and loss of spousal consortium as a result. On July 26, 2010, the defendants filed a motion for summary judgment arguing that, as a matter of law, Brown did not owe a duty of care to the plaintiffs and his actions were not a proximate cause of the plaintiffs’ alleged injuries. The court granted the motion in an order on November 26, 2010, stating that “as a matter of law, [Kumah’s] collision with an emergency vehicle several hours after [Brown’s] accident was not reasonably foreseeable nor was it the proximate cause of [Kumah’s] accident and injuries.” This appeal followed.

We begin with the well settled standards governing our review of a trial court’s decision to grant a motion for summary judgment. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . .

“[T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment .... [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist. . . . On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts [that appear in the record]. . . . Our review of the trial court’s decision to grant [a] motion for summary judgment is plenary.” (Internal quotation marks omitted.) Roy v. Bachmann, 121 Conn. App. 220, 223, 994 A.2d 676 (2010).

We turn next to the principles of causation. Causation is an essential element of a cause of action in negligence. Winn v. Posades, 281 Conn. 50, 56, 913 A.2d 407 (2007). “[A] plaintiff must establish that the defendant’s conduct legally caused the injuries. . . . The first component of legal cause is causation in fact. Causation in fact is the purest legal application of . . . legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor’s conduct. . . . The second component of legal cause is proximate cause .... [T]he test of proximate cause is whether the defendant’s conduct is a substantial factor in bringing about the plaintiffs injuries. . . . Further, it is the plaintiff who bears the burden to prove an unbroken sequence of events that tied his injuries to the [defendant’s conduct]. . . . The existence of the proximate cause of an injuiy is determined by looking from the injury to the negligent act complained of for the necessary causal connection. . . . This causal connection must be based upon more than conjecture and surmise.” (Internal quotation marks omitted.) Id., 56-57.

In addition to the substantial factor test of causation, the plaintiffs urge this court to apply a scope of foreseeable risk test in our present analysis. In that vein, they contend that the harm suffered by Kumah when he collided with the emergency responders was within the scope of the risk created by Brown’s failure to control his vehicle, i.e., that a harm of this general nature was reasonably foreseeable.

We recognize that our decisional law has discussed foreseeability in connection with causation. In Doe v. Manheimer, 212 Conn. 748, 758, 563 A.2d 699 (1989), overruled in part on other grounds by Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 608, 662 A.2d 753 (1995), our Supreme Court stated that “the substantial factor test, in truth, reflects the inquiry fundamental to all proximate cause questions; that is, whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant’s negligence.” (Internal quotation marks omitted.) In a similar formulation, the Supreme Court also stated: “The fundamental inquiry of proximate cause is whether the harm that occurred was within the scope of foreseeable risk created by the defendant’s negligent conduct.” First Federal Savings & Loan Assn. of Rochester v. Charter Appraisal Co., 247 Conn. 597, 604, 724 A.2d 497 (1999). Variations on this theme have been cited with some frequency. See, e.g., Artie’s Auto Body, Inc. v. Hartford Fire Ins. Co., 287 Conn. 208, 947 A.2d 320 (2008).

Notwithstanding these precedential formulations, we also recognize that the language “harm of the general nature” originally derives from our Supreme Court’s jurisprudence concerning duty of care, not causation. “The ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised. ... By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary man in the defendant’s position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?” (Citation omitted.) Orlo v. Connecticut Co., 128 Conn. 231, 237, 21 A.2d 402 (1941). This language is now a central feature of the formal, two part test of duty of care. See Zamstein v. Marvasti, 240 Conn. 549, 558, 692 A.2d 781 (1997). Furthermore, we note that although foreseeability conventionally has been intertwined with causation as well as with duty; see RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 387 n.4, 650 A.2d 153 (1994); our Supreme Court expressly has stated that an issue of foreseeability “is more appropriately resolved as a question of duty.” Lodge v. Arett Sales Corp., 246 Conn. 563, 575 n.10, 717 A.2d 215 (1998). In light of this precedential authority, we eschew the application of a foreseeability test in the present examination of proximate cause and focus our analysis, instead, on whether the plaintiff has alleged negligent acts by Brown that a reasonable fact finder could find to have been a substantial factor in causing Kumah’s injuries.

In making this analysis, we are aware that issues of proximate cause may be determined by way of summary judgment only in rare circumstances. “[T]he question of proximate causation generally belongs to the trier of fact because causation is essentially a factual issue. ... It becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion; if there is room for a reasonable disagreement the question is one to be determined by the trier as a matter of fact.” (Internal quotation marks omitted.) Alexander v. Vernon, 101 Conn. App. 477, 485, 923 A.2d 748 (2007). Accordingly, we look for guidance in opinions in which this court has concluded that the issue of proximate cause may be determined as a matter of law.

In Coste v. Riverside Motors, Inc., 24 Conn. App. 109, 585 A.2d 1263 (1991), this court considered a case in which an employer refused his employee’s request to leave work early due to a snowstorm. As the employee was driving home, he lost control of his automobile on the icy road and collided with an oncoming vehicle, sustaining serious injuries. Id., 110-11. The trial court granted the employer’s motion to strike the employee’s complaint on the ground that the allegation of causation was not legally sufficient. Id., 111. In affirming the decision, this court reasoned that “[c]or\jecture exists as to whether the harm to the plaintiff would have ensued had the plaintiff completed his assigned work earlier, and, therefore, could have left earlier when driving conditions may have been better. Conjecture also exists as to whether the accident would have occurred had the road been better sanded or plowed, or had the plaintiff taken another route home, or had he driven a different make and model car, or had he been a better driver.” Id., 115. Considering the many variables that contributed to the collision, this court determined in Coste that the employer’s conduct was too inconsequential to rise to the level of a proximate cause. Id.

In similarly attenuated circumstances, this court concluded that the trial court should have directed a verdict for the defendant condominium association where the mechanical failure of an intercom system could not reasonably have been found to be a proximate cause of an attack that occurred as the plaintiff was waiting outside the door to an apartment building. Medcalf v. Washington Heights Condominium Assn., Inc., 57 Conn. App. 12, 18, 747 A.2d 532, cert. denied, 253 Conn. 923, 754 A.2d 797 (2000). Also, in Alexander v. Vernon, supra, 101 Conn. App. 490-91, this court found a lack of proximate cause where the estate of a wife who was killed by her estranged husband alleged that police officers were negligent in not protecting the wife and not arresting the husband. The police had responded to the wife’s complaints of domestic violence by recommending that she leave the residence while they attempted to locate her husband. Id., 480. They failed to locate him, and two days later he broke into her mother’s house, where she was staying, and killed her. Id., 481. This court affirmed the summary judgment granted by the trial court on the ground that it would have required mere conjecture for a fact finder to conclude that the murder would have been prevented had the police acted differently. Id., 490-91.

In the case at hand, connecting Brown’s alleged negligent acts to the harm suffered by the plaintiffs would require similar conjecture. By the time Kumah collided with the fire truck, Brown’s truck had been removed from the traveled portion of the highway. While some diesel fuel spill remained, conjecture exists as to whether Kumah would have crashed if he had encountered it. Conjecture also exists as to whether the collision would have occurred had the Cos Cob patrol set up the traffic pattern differently, such as with taller cones, with a longer approach and with the fire truck configured so as to display the lights more prominently; or had Kumah been driving more carefully. “Remote or trivial [actual] causes are generally rejected because the determination of the responsibility for another’s injury is much too important to be distracted by explorations for obscure consequences or inconsequential causes. ... In determining proximate cause, the point beyond which the law declines to trace a series of events that exist along a chain signifying actual causation is a matter of fair judgment and a rough sense of justice.” (Citation omitted; internal quotation marks omitted.) Paige v. St. Andrew's Roman Catholic Church Corp., 250 Conn. 14, 25, 734 A.2d 85 (1999). Finally, we note that nowhere do the plaintiffs allege that Brown had any control over the accident scene at the time of Kumah’s collision into the fire truck or in any way contributed to the configuration of the fire truck and warning lights and cones. Rather, the plaintiffs’ allegations against the defendants relate, in their entirety, to Brown’s conduct in losing control of his tractor trailer truck earlier in the morning. Considering the many variables attendant to the plaintiffs’ allegations, we conclude that no reasonable fact finder could find that Brown’s conduct, as alleged by the plaintiffs, had a sufficient nexus to Kumah’s collision to be a substantial factor in bringing about the plaintiffs’ injuries.

We find further support for this conclusion in the Restatement (Second) of Torts, § 433 (a), which provides that an important consideration in determining whether an actor’s conduct was a substantial factor in bringing about another’s harm is “the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it . . . .” 2 Restatement (Second), Torts, Legal Cause § 433, p. 432 (1965). Comment (d) to this section amplifies: “Some other event which is a contributing factor in producing the harm may have such a predominant effect in bringing it about as to make the effect of the actor’s negligence insignificant and, therefore, to prevent it from being a substantial factor. So too, although no one of the contributing factors may have such a predominant effect, their combined effect may, as it were, so dilute the effects of the actor’s negligence as to prevent it from being a substantial factor.” Id., comment (d), p. 433. In the present case, we conclude that the actions of the Cos Cob patrol and Kumah had just such a diluting effect.

In summary, this case presents one of the rare circumstances in which the trial court properly may find a lack of proximate cause as a matter of law because “the mind of a fair and reasonable [person] could reach only one conclusion . . . .” (Internal quotation marks omitted.) Alexander v. Vernon, supra, 101 Conn. App. 485. We conclude that there are no material facts at issue-that could permit a trier of fact to draw an unbroken line of causation between Brown’s operation of his vehicle at 1:50 a.m. and Kumah’s collision with the fire truck at 4:10 a.m., and, therefore, Brown’s actions were not aproxímate cause of the plaintiffs’ injuries. Because causation is an essential element of any negligence action, we need not address the court’s alternative ground for rendering summary judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs also brought this action against Sparks Finance Company and the town of Greenwich. For the proposes of this appeal, however, Brown and Swift Transportation Company, Inc., which was Brown’s employer at the time, are the sole defendants of interest, and we, therefore, refer to them as the defendants.

       The plaintiffs also claim that the court improperly determined that their injuries were not a reasonably foreseeable result of the defendants’ conduct, and, therefore, the defendants did not owe them a legal duty of care. Because we conclude that the plaintiffs presented no material facts from which a fact finder reasonably could find that the defendants’ actions were a proximate cause of the plaintiffs’ injuries, we need not reach this claim. See State v. Custer, 110 Conn. App. 836, 839 n.4, 956 A.2d 604 (2008).

       In their complaint, the plaintiffs alleged that Brown was negligent in the following ways: he failed to keep his vehicle under proper and reasonable control, he was operating his vehicle at an unreasonable rate of speed under the conditions and/or in violation of General Statutes § 14-218a, he failed to apply his brakes in time to avoid a collision, and/or he failed to drive in the established lane in violation of General Statutes § 14-236.

       Our courts have relied on the Restatement for guidance in determining whether an actor’s conduct was a substantial factor in producing harm to another. See, e.g., Collins v. City National Bank & Trust Co., 131 Conn. 167, 171, 38 A.2d 582 (1944) (citing Restatement [Second], Torts §§ 433 [b] and 447).


source: Caselaw Access Project

license: Public Domain

text:
    FAMILY GARAGE, INC. v. COMMISSIONER OF MOTOR VEHICLES
    (AC 32001)
    (AC 32003)
    Bishop, Espinosa and Mihalakos, Js.

      Argued May 16
    officially released July 26, 2011

      Thomas J. Weihing, with whom, on the brief, were Virginia C. Foreman and John T. Bochanis, for the appellant (plaintiff).

      Drew S. Graham, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (defendant).
   Opinion

BISHOP, J.

These consolidated appeals arise from two complaints filed with the department of motor vehicles (department) alleging that the plaintiff, Family Garage, Inc., charged illegal “steering fees” for the release of vehicles that it had towed to its place of business. The plaintiff appeals from the judgments of the trial court dismissing its administrative appeals from the decisions of the defendant, the state commissioner of motor vehicles (commissioner), ordering the plaintiff to make restitution to the complainants and to pay civil penalties. On appeal, the plaintiff claims that the trial court erred in upholding the findings of the commissioner, who, acting through the department hearing officer, improperly (1) determined that steering fees were unauthorized at the time of the incidents, (2) based his decision solely upon unreliable hearsay evidence, (3) determined that the plaintiff had charged fees to release the vehicles and (4) condoned a violation of public policy. We affirm the judgments of the trial court.

The following undisputed facts and procedural history are relevant to our resolution of the plaintiffs claims. As to AC 32001, in October, 2006, the plaintiff towed a damaged vehicle owned by Brenda Smith and Daniel Smith to its place of business. The vehicle was insured by Travelers Insurance Company (Travelers). On October 13, 2006, the owners requested that the plaintiff release the vehicle, at which time it wrote an invoice to Daniel Smith describing a $500 “steering fee—-forced by insurance company to use shop of their own choice.” Travelers paid the charge. Subsequently, Travelers filed a complaint with the department on November 8,2006. In a memorandum of decision following a hearing, the commissioner ordered the plaintiff to make restitution to Travelers in the amount of $500 and to pay a civil penalty of $250 to the department.

As to AC 32003, in December, 2006, the plaintiff had towed a damaged vehicle owned by Marie Sainvil to its place of business. The vehicle was insured by Progressive Insurance Company (Progressive). On December 6, 2006, Sainvil requested that the plaintiff release the vehicle, at which time it wrote invoices to Sainvil describing a $750 “steering fee” and a $48 fee for “1 hour wasted with owner by phone.” Progressive ultimately paid the charges. Subsequently, Progressive filed a complaint with the department on December 19,2006. In a memorandum of decision following a hearing, the commissioner ordered the plaintiff to make restitution to Progressive in the amount of $798 and to pay a civil penalty of $250 to the department.

The plaintiff appealed both decisions to the Superior Court. The court issued a memorandum of decision on February 8, 2010, dismissing the plaintiffs appeals. These appeals followed.

We begin with our standard of review of an administrative appeal. “We review the issues raised by the plaintiff in accordance with the limited scope of judicial review afforded by the [Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq.] .... Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . .

“An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . The substantial evidence rule imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and . . . provide [s] a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action. . . . [I]t is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence. . . .

“[A]s to questions of law, [t]he court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion. . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts.” (Citations omitted; internal quotation marks omitted.) Spitz v. Board of Examiners of Psychologists, 127 Conn. App. 108, 114-16, 12 A.3d 1080 (2011).

I

The plaintiff first claims that the commissioner improperly determined that steering fees were unauthorized at the time of the incidents. The following additional facts are relevant. On June 13, 2007, subsequent to the 2006 incidents, the commissioner issued a letter to “All Connecticut Towers,” advising that General Statutes §§ 14-66 and 14-63-34 through 14-63-37b of the Regulations of Connecticut State Agencies do not authorize “steering fees,” “gate fees” or similar charges. The letter noted that any complaint of that nature received thereafter by the department would result in swift enforcement action. Subsequently, at both hearings, the department’s Lieutenant Frank Baio testified that, at the time of the incidents, the department had not yet formulated a policy for dealing with steering fee complaints and that this policy was established in the 2007 letter.

The plaintiff, while not disputing that steering fees are currently prohibited, contends that the 2007 letter constituted a new regulation or an amendment to a regulation, and, consequently, the plaintiff lacked proper notice in 2006 that steering fees were prohibited. Following the hearings, however, the commissioner determined that the letter was simply a clarification that the regulations do not authorize steering fees, and the trial court agreed on appeal. We also agree with the commissioner.

“Because the present [claim] presents a question of law and does not involve an agency’s time-tested interpretation of its regulations . . . the standard of review is de novo.” Connecticut Motor Cars v. Commissioner of Motor Vehicles, 300 Conn. 617, 622, 15 A.3d 1063 (2011). The current regulatory scheme pertaining to “Permitted Charges” for storage and release of stored motor vehicles took effect prior to the 2006 incidents. It expressly provides that following a nonconsensual tow, no additional fees shall be charged by the towing service for the release of the vehicle to the owner. Regs., Conn. State Agencies §§ 14-63-36b (2) (G) and 14-63-36c (a) and (e).The 2007 policy letter, therefore, did not create a new standard; cf. Salmon Brook Convalescent Home, Inc. v. Commission on Hospitals & Health Care, 177 Conn. 356, 417 A.2d 358 (1979); nor did it revise the preexisting regulation. See Persico v. Maher, 191 Conn. 384, 402, 465 A.2d 308 (1983). To the contrary, rather than making a change, the letter simply recognized that, in this highly regulated area, “[tjhere is no authorization in the regulations or in the schedule for ‘steering fees’ ” and indicated the department’s intention to focus its attention in this area. We conclude, therefore, that the commissioner properly determined that steering fees were unauthorized at the time of the incidents.

II

The plaintiffs second claim is that the commissioner improperly considered certain hearsay evidence in violation of due process, namely, the complaint documents submitted to the department by the insurance companies. Each complaint included, inter alia, a complaint form, a letter from the insurance company, copies of invoices written by the plaintiff and a summary by the department inspector. Neither the complainants nor the vehicle owners testified at either hearing; however, the commissioner heard testimony from two department employees, a lieutenant and an inspector, at both hearings and from Thornton Scott, the plaintiffs vice president, at the Travelers hearing. The plaintiff contends that, in light of the fact that representatives of Travelers and Progressive were not present for cross-examination at the respective hearings, the commissioner should not have relied upon the documents. We do not agree.

“[W]e begin by noting that hearsay testimony, so long as it is sufficiently trustworthy, generally is admissible in administrative hearings.” Addona v. Administrator, Unemployment Compensation Act, 121 Conn. App. 355, 363, 996 A.2d 280 (2010); see General Statutes § 4-178. Nevertheless, “[i]f hearsay evidence is insufficiently trustworthy to be considered ‘substantial evidence’ and it is the only evidence probative of the plaintiffs culpability, its use to support the agency decision would be prejudicial to the plaintiff, absent a showing . . . that the appellant knew it would be used and failed to ask the commissioner to subpoena the declarants.” (Emphasis added.) Carlson v. Kozlowski, 172 Conn. 263, 267, 374 A.2d 207 (1977).

Because the challenged documents were not the only evidence probative of the plaintiffs culpability, we need not resolve whether the complainants’ hearsay statements were sufficiently trustworthy or whether it was incumbent upon the plaintiff to have the complainants subpoenaed if it wished to examine them with respect to the documents. The record included the plaintiffs own invoices indicating that it charged a $500 steering fee in the Travelers incident and a $750 steering fee and a $48 fee for “1 hour wasted with owner by phone” in the Progressive incident. The plaintiff does not dispute the authenticity of the invoices, and the invoices corroborate the allegations in the complaints. Thus, the commissioner did not base his decision upon unreliable hearsay, and we conclude that the commissioner’s consideration of the documentary evidence was neither illegal nor an abuse of discretion.

Ill

The plaintiffs third claim is that the commissioner improperly determined that the charges were connected to the release of the vehicles. We are not persuaded.

Apart from the documentary evidence, the record contains only the testimony of the department inspector and lieutenant, who lacked personal knowledge of the incidents, and the testimony of Scott, the plaintiffs vice president. Scott testified in the Travelers hearing that the “steering fee” was not tied to the release of the vehicle but, rather, was restitution paid by Travelers in exchange for the plaintiffs promise not to sue Travelers for interfering with the plaintiffs alleged repair contract with the vehicle’s owner. Renewing its contention that the commissioner should have disregarded the documentary evidence as unreliable hearsay, the plaintiff argues that the testimony alone did not constitute sufficient evidence to support the commissioner’s determination that the plaintiff had charged fees to release the vehicles.

Scott’s testimony, however, which the commissioner appears to have disbelieved, was not the only evidence relevant to the issue of whether the fees were charged in connection with the release of the vehicles. As we concluded in our analysis of the prior claim, the documentary evidence properly was in the record. That evidence included, for example, the plaintiffs own invoice from the Travelers incident written to the vehicle owner, Daniel Smith, with the description “steering fee—forced by insurance company to use shop of their own choice.” On the basis of our review of the entire record, we conclude that there was substantial evidence to support the commissioner’s determination that the plaintiff charged fees to release the vehicles.

IV

The plaintiffs final claim is that the commissioner improperly condoned a violation of public policy. General Statutes § 38a-354 (b) provides in relevant part that “[n]o insurance company doing business in this state, or agent or adjuster for such company shall (1) require any insured to use a specific person for the provision of automobile physical damage repairs . . . .” The plaintiff adduced documentation and Scott’s testimony indicating that the owners of the vehicles had agreed to have the vehicles repaired at the plaintiffs garage but that Travelers and Progressive had insisted on having the repairs done elsewhere. Given that the complainants’ arguably illegal conduct instigated the incidents, the plaintiff claims that, by ordering the plaintiff to make restitution to the complainants, the commissioner’s decision condoned their conduct. We do not agree.

In support of this claim, the plaintiff cites the authority of the courts to vacate an arbitral award that violates public policy; see State v. Connecticut State Employees Assn., SEIU Local 2001, 287 Conn. 258, 271-74, 947 A.2d 928 (2008); and also cites the doctrine of unclean hands, which may be raised as a special defense to an equitable action. Monetary Funding Group, Inc. v. Pluchino, 87 Conn. App. 401, 407, 867 A.2d 841 (2005). The plaintiff provides no legal authority, however, for the proposition that these means of relief are available in the context of an administrative complaint, which is subject to its own well settled principles of review. We conclude, therefore, that the instigating conduct of the complainants was not relevant to the determination of the plaintiffs culpability, and the commissioner’s decisions do not reflect upon the propriety of the complainants’ collateral conduct.

The judgments are affirmed.

In this opinion the other judges concurred.

       The term “steering fee” refers to a charge imposed by a garage to which a disabled vehicle has been towed when the vehicle owner or insurer “steers” the business to a competitor garage instead of having the original garage perform the repair work.

       General Statutes § 14-66 (a) (3) provides in relevant part: “With respect to the nonconsensual towing or transporting and the storage of motor vehicles, no such person, firm or corporation shall charge more than the rates and charges published by the commissioner. . . .” Section 14-63-36c (a) of the Regulations of Connecticut State Agencies provides that, for nonconsensual towing or transporting services, a towing service may not charge any fees in excess of the tow charge. The “tow charge” includes the release of the vehicle to the owner or person otherwise entitled to possession. Regs., Conn. State Agencies §§ 14-63-36b (2) (G) and 14-63-36c (e). Our Supreme Court has articulated that “the term ‘tow charge’ encompasses all of the services rendered in the nonconsensual towing, transporting and releasing of a motor vehicle . . . [including] the labor and equipment needed to move a wrecked or disabled vehicle from the secured storage area to the designated vehicle retrieval area.” Connecticut Motor Cars v. Commissioner of Motor Vehicles, supra, 300 Conn. 623.

       General Statutes § 4-178 of the UAPA provides in relevant part: “In contested cases: (1) Any oral or documentary evidence may be received, but the agency shall, as a matter of policy, provide for the exclusion of irrelevant, immaterial or unduly repetitious evidence ... (5) a party and such agency may conduct cross-examinations required for a full and true disclosure of the facts . . . .”


author: ALVORD, J.

text:
    DEAN-MOSS FAMILY LIMITED PARTNERSHIP v. FIVE MILE RIVER WORKS, INC.
    (AC 31615)
    Beach, Robinson and Alvord, Js.

      Argued March 18
    officially released July 26, 2011

      Daniel J. Klau, for the appellant (defendant).

      James R. Fogarty, for the appellee (plaintiff).
   Opinion

ALVORD, J.

The defendant, Five Mile River Works, Inc., appeals from the judgment of the trial court enjoining it from disturbing, obstructing or interfering with the rights of the plaintiff, Dean-Moss Family Limited Partnership, as set forth in a deeded parking easement that benefits the plaintiff’s property. On appeal, the defendant claims that the court’s judgment was void because the matter became moot prior to trial when the plaintiff’s approvals for its coastal site plan expired by virtue of § 118-1110 (C) (5) of the Norwalk building zone regulations (regulations). We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. In March, 2002, the plaintiff, together with Joan Dean as a general partner, filed applications for the approval of a two part coastal area management site plan with the zoning commission of the city of Norwalk (commission). If approved, the plaintiff would have been able to expand the water dependent use of its property as a marina by adding ten additional docking slips at 119 Rowayton Avenue and by constructing ten parking places at 117 Rowayton Avenue. The plaintiff is the owner of 119 Rowayton Avenue and has a recorded easement, executed in 1980, for ten parking places on the adjacent property at 117 Rowayton Avenue. The defendant, who is the owner of 117 Rowayton Avenue, operates a marina at that site and opposed the plaintiffs applications. Although the applications fully complied with the applicable zoning regulations, the commission denied them because, inter alia, it determined that the proposed parking at 117 Rowayton Avenue would have an adverse impact on the current and future water dependent uses of the defendant’s property.

Dean and the plaintiff appealed from the commission’s denials to the Superior Court. After the trial court dismissed their appeals, they filed a certified appeal with this court. We concluded that the trial court incorrectly assumed that the legislature intended that the preservation and enhancement of coastal resources had priority over vested property rights. Dean v. Zoning Commission, 96 Conn. App. 561, 569, 901 A.2d 681, cert. denied, 280 Conn. 937, 910 A.2d 217 (2006). Accordingly, we reversed the judgment and remanded the case to the trial court with direction to sustain the plaintiffs appeal from the denial of the site plan applications for additional boat slips at 119 Rowayton Avenue and ancillary parking at 117 Rowayton Avenue. Id., 570-71. Pursuant to our remand, the court, Karazin, J., rendered judgment on January 10, 2007, sustaining the plaintiffs appeal from the denial of the site plan applications for the additional boat slips and ancillary parking.

Shortly after judgment was rendered, the plaintiff notified the defendant that it intended to pave the parking spaces in accordance with the engineering plans filed with its coastal site plan applications. By letter dated April 10, 2007, the defendant claimed that “whatever easement rights may have once existed . . . have been extinguished” and stated that it would not permit the plaintiff to enter upon its property at 117 Rowayton Avenue. The plaintiff filed the present action on May 31,2007, alleging interference with its rights as set forth in the 1980 parking easement and seeking injunctive relief and specific performance. The defendant filed an answer with nine special defenses, and a seven count counterclaim. Following a two day court trial, the court issued its memorandum of decision rendering judgment in favor of the plaintiff. In the October 1, 2009 decision, the court held that the plaintiff “should prevail on its claims for an order enjoining [the defendant] and its agents from disturbing, obstructing or interfering with [the plaintiffs] rights under the parking easement and a judgment specifically enforcing the easement.” Further, the court expressly held that the defendant failed to prove any of its special defenses or the allegations in its multicount counterclaim. This appeal followed.

On appeal, the defendant claims that the judgment of the trial court was void because it lacked subject matter jurisdiction to hear the case. Specifically, the defendant argues that the matter became moot prior to trial because the plaintiffs court-ordered approvals of its coastal site plan applications expired in January, 2008, by virtue of § 118-1110 (C) (5) of the regulations. We disagree.

The following additional facts and procedural history are necessary for the resolution of the defendant’s claim. On December 17,2008, which was approximately four months before the scheduled trial, the plaintiff filed a request for permission to amend its complaint to add allegations to the existing counts. The amendment to the complaint alleged that (1) the defendant sent a letter to the commission requesting confirmation that the approvals of the applications ordered by the court on January 10, 2007, had expired, (2) the only reason that the plaintiff had not undertaken the work contemplated by the approvals was because the defendant refused to permit the plaintiff to enter upon the defendant’s property, (3) the work contemplated by the approvals did not require the issuance of a building permit and (4) the defendant wrongfully prevented the plaintiff from implementing the approvals of the applications and wrongfully claimed that the approvals had become null and void through the passage of time. The plaintiff additionally requested permission to add the following paragraph to its requests for relief: “A [declaratory [j]udgment, determining that the approvals of the [coastal area management] applications ordered in the [c]ourt’s [j]udgment in January, 2007, are fully valid and enforceable until further order of this [c]ourt.” The court permitted the amendment to the complaint.

The evidence at trial established that in 1980, the prior owners of 117 Rowayton Avenue (the grantors) granted the parking easement at issue to the plaintiffs predecessor in title. The grantors granted “the right, privilege, and authority to perpetually maintain a parking lot for up to ten (10) parking spaces for the use of [119 Rowayton Avenue] only if required so that [119 Rowayton Avenue] will comply with the off-street parking regulations of the City of Norwalk, over the following described property: Parking spaces [nine] through [eighteen] [as shown on a certain map of 117 Rowayton Avenue].” The plaintiff argued, and the court agreed, that the contingency in the easement had not been met until the plaintiffs application for additional boat slips was approved, thereby triggering the requirement for the additional parking on 117 Rowayton Avenue. According to the court, the easement’s contingency was satisfied when, pursuant to our remand order, judgment was rendered on January 10, 2007.

On the basis of the evidence presented to the court, it further determined that “the parking easement is valid, was obtained by adequate consideration, is enforceable, and has not been lost by adverse use.” All of the defendant’s special defenses and the claims alleged in its six count counterclaim were addressed thoroughly in the court’s memorandum of decision and were rejected. The court did not, however, address the plaintiffs claim for a declaratory judgment as set forth in the amendment to its complaint nor did it include in its judgment the plaintiffs requested language that the approvals were “fully valid and enforceable until further order of this [c]ourt.”

We note that the issue of mootness never was raised during the trial. The only indication of a possible claim that the approvals had expired is found in the following two sentences of the defendant’s thirty-five page post-trial brief: “Finally, § 118-1110 (C) (5) [of the regulations] requires all construction to be completed within one (1) year from approval (here the [j]udgment of January 10, 2007), otherwise the approval expires unless an extension has been granted. No extension was ever applied for hence none could have been granted.” In the conclusion section of that brief, the defendant did not claim that the court should dismiss the action for lack of subject matter jurisdiction. Rather, the defendant claimed that the court should determine that the parking easement was “a sham” when negotiated, that the use of the defendant’s property would become illegal if the easement was utilized, that the parking easement was against public policy and unenforceable, that the easement’s condition precedent never was satisfied and that the defendant’s use of its property extinguished the easement. The defendant requested the court to render judgment in its favor on the complaint and on its counterclaim and an “order in recordable form discharging said easement.”

Nevertheless, the lack of subject matter jurisdiction can be raised at any time. “Subject matter jurisdiction [implicates] the authority of the court to adjudicate the type of controversy presented by the action before it. ... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction .... The objection of want of jurisdiction may be made at any time . . . [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention. . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings.” (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 429-30, 829 A.2d 801 (2003).

“Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [a] court’s subject matter jurisdiction .... Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ... (2) that the interests of the parties be adverse ... (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant.” (Internal quotation marks omitted.) Reveron v. Board of Firearms Permit Examiners, 123 Conn. App. 475, 477-78, 1 A.3d 1272 (2010).

The defendant claims that the plaintiffs court-ordered approvals have expired because the plaintiff did not obtain a building permit or request an extension of time from the commission within one year of January 10, 2007, the date of judgment. Because the easement’s contingency was satisfied at that time, the defendant argues that the plaintiff’s inaction caused the approvals to become null and void as of January, 2008, as directed by § 118-1110 (C) (5) of the regulations. The trial before the court was held on April 21 and 22, 2009, and the court issued its memorandum of decision on October 1, 2009. Because the trial occurred after January, 2008, the defendant claims that the court should have dismissed the plaintiff’s action because it lacked subject matter jurisdiction and that the judgment therefore is void.

The plaintiff argues that we cannot conclude that the approvals expired because there is no evidence in the record (1) that a building permit was required for its proposal, (2) that it had not obtained a building permit if one was required or (3) that it had not requested and obtained an extension of time from the commission. Further, the plaintiff claims that even if the mootness doctrine does apply, the capable of repetition, yet evading review exception to the mootness doctrine permitted review of its claims. Finally, the plaintiff claims that the time limitation period referenced in § 118-1110 (C) (5) of the regulations is tolled while the matter is in litigation and cites Fromer v. Two Hundred Post Associates, 32 Conn. App. 799, 631 A.2d 347 (1993), in support of that argument. We agree that the rationale of Fromer applies under the circumstances of this case.

In Fromer, the trial court dismissed the plaintiff’s appeal from the second extension of a wetlands permit granted by the New London conservation commission inland wetlands agency to the proposed developer of an adjacent parcel of land. The plaintiff claimed that the commission was without authority to grant a second extension and that, in any event, the issue was moot because the second permit extension had terminated by lapse of time and was void. The defendant argued that the plaintiffs tactics were responsible for the passage of time and that the litigation had the effect of tolling the time limitations or that the plaintiff was equitably estopped from making that claim. The trial court found that it would be “peculiarly inappropriate to permit the plaintiff by appealing the granting of a permit to the Superior Court where it is clear that more than one year will be consumed in the process to thereby render the entire process moot by the expiration of that one year provided for in the regulation.” Accordingly, in dismissing the plaintiffs appeal, the trial court in Fromer concluded that the theory of equitable estoppel was “peculiarly appropriate” under the circumstances of the case and held that the plaintiff was “estopped from claiming the benefit of the one year limit on the permit in the context of the appeal to render the matter moot.” Fromer v. Two Hundred Post Associates, Superior Court, judicial district of New London, Docket No. 513227 (October 23, 1991) (6 C.S.C.R. 1007).

On appeal to this court, the plaintiff in Fromer claimed that estoppel and tolling were not appropriate vehicles to uphold the commission’s decision. We held as follows: “[0]n the facts of this case, in which a valid permit was issued to conduct a regulated activity within a specified time period and appeals from the granting of the necessary permits to conduct that activity were not resolved within the time period during which the activity was required to begin, that time period is tolled until all litigation is completed.” Fromer v. Two Hundred Post Associates, supra, 32 Conn. App. 802. In reaching that conclusion, we noted that the defendant had been involved with the subject permit application for more than five years because of the appeals brought by the plaintiff and that it would have been reckless for the developer to have begun construction of the development while appeals from the granting of the various permits were pending. Id., 805-806. In response to the plaintiffs argument that the regulations permitted only one extension, we stated: “The obvious remedy is to toll the one year duration of the permit until all appeals are decided.” (Emphasis added.) Id., 807.

In the present case, the defendant argues that Fromer is distinguishable because this action is not an administrative appeal that was brought by the defendant to challenge the granting of the permit to the plaintiff, but, rather, it is an action for injunctive relief that was commenced by the plaintiff to enforce the disputed parking easement. The defendant claims that Fromer would be applicable only if the commission originally had granted the coastal site plan applications and an adverse party had appealed from that decision. Under those limited circumstances, the defendant claims, the time limitation would have been tolled pending the resolution of the land use appeal. Here, the defendant argues that the plaintiff merely had to apply for a building permit or an extension of time in order for its approvals to remain viable. We are not persuaded by the defendant’s arguments and conclude that the rationale underlying Fromer is applicable to the facts of this case.

As indicated by the defendant, the plaintiffs applications initially were not granted by the zoning commission, and the commission’s denial was upheld in the plaintiffs administrative appeal to the Superior Court. This court, however, determined that the denial was improper and remanded the case to the trial court “with direction to sustain the plaintiffs’ appeal from the denial of their site plan applications for additional boat slips at 119 Rowayton Avenue and ancillary parking at 117 Rowayton Avenue.” Dean v. Zoning Commission, supra, 96 Conn. App. 570-71. Less than three months after judgment was rendered pursuant to this court’s remand order, the plaintiff notified the defendant that it intended to pave the parking spaces in accordance with its approved applications. The defendant admitted, in its pleadings and at oral argument before this court, that it refused the plaintiff entry onto its property at 117 Rowayton Avenue and challenged the plaintiffs ability to enforce its claimed rights under the parking easement. Less than two months after the defendant’s response in its April 10, 2007 letter, the plaintiff filed the present action seeking to enjoin the defendant from interfering with those rights. At trial, Harold Dean, a witness for the plaintiff, testified that the only reason the plaintiff had not effectuated its parking easement at 117 Rowayton Avenue was because of the defendant’s refusal to allow it access onto that property.

The record reflects that the plaintiff has consistently and persistently pursued its right to construct the ten parking places provided for in the recorded parking easement from the time judgment was rendered in its favor on January 10, 2007, through the course of the pending action. The plaintiff has been met with strong resistance from the defendant whenever it attempted to exercise that right. The litigation with respect to the coastal site plan approvals began with the plaintiffs appeal from the commission’s denial of its applications and is still ongoing. The injunction action is related directly to the plaintiffs administrative appeal, in which it ultimately prevailed, because the plaintiff continues to attempt to enforce its vested and court sanctioned property right to add ten additional docking slips at 119 Rowayton Avenue and to construct ten parking places at 117 Rowayton Avenue.

It is only because of the peculiar factual situation in this case, i.e., the necessity of entering onto the defendant’s property in order to effectuate the parking easement, that the procedural posture of this case differs from Fromer. The underlying rationale for tolling the time limitation in the zoning regulation, however, is equally applicable. It is the defendant’s conduct in opposing the granting of the plaintiffs coastal site plan applications, and its subsequent actions in challenging the validity and enforceability of the parking easement that is an integral part of those applications, that has caused the lapse of time that the defendant now claims has resulted in the expiration of those approvals. Thus, even though the present case is not an administrative appeal, we conclude that the Fromer rationale is applicable. “Appellate courts of our jurisdiction have long eschewed the practice of elevating form over substance.” Diamond 67, LLC v. Planning & Zoning Commission, 117 Conn. App. 72, 84, 978 A.2d 122 (2009).

The defendant’s argument that the plaintiff could have prevented the expiration of the approvals by applying for a building permit or by seeking an extension of time from the commission is not persuasive. Building permits and extensions of time are also limited in duration. They certainly may expire prior to the conclusion of protracted litigation between parties. Further, as conceded by the defendant at oral argument before this court, the commission has the discretion to approve or deny such a request. If approved, the defendant, as did the plaintiff in Fromer, could appeal from the commission’s decision, which action would cause even more time to elapse. Thus, “[t]he obvious remedy is to toll the one year duration of the permit until all appeals are decided.” Fromer v. Two Hundred Post Associates, supra, 32 Conn. App. 807.

“The regulatory process is not designed to be a spider’s web, snaring one who follows all the regulations and statutes, obtains all the necessary permits, and successfully defends a series of appeals, but then loses his right to proceed because the passage of time has caused the permits to expire.” Id., 811. Under the particular circumstances of this case, we conclude that the time limitation in § 118-1110 (C) (5) of the regulations is tolled until all litigation is completed.

The judgment is affirmed.

In this opinion the other judges concurred.

       Section 118-1110 (C) (5) of the Norwalk building zone regulations provides: “Coastal site plan review approval of any building, use or structure for which a building permit has not been issued within one (1) year from the effective date shall become null and void, unless an extension of time is applied for and granted by the Commission.”

       The additional parking is a prerequisite for the expansion because § 118-1220 (C) (18) (a) of the regulations requires one parking space per mooring or dock space. See Dean v. Zoning Commission, 96 Conn. App. 561, 563 n.1, 901 A.2d 681, cert. denied, 280 Conn. 937, 910 A.2d 217 (2006).

       Dean is not a plaintiff in the present action.

       The third count of the plaintiffs complaint, which sought damages, was withdrawn at the time of trial.

       The seventh count of the defendant’s counterclaim, which sought damages for alleged drainage problems on the defendant’s property caused by the plaintiffs use of its property, was withdrawn at the time of trial.

       We note that the defendant incorrectly stated that all construction had to be completed within one year of the effective date of the approvals. Section 118-1110 (C) (5) of the regulations provides that an approval becomes null and void if a building permit has not been issued within one year from the effective date of that approval, unless an extension of time is granted by the commission. See footnote 1 of this opinion.

       The defendant’s posttrial reply brief did not mention § 118-1110 (C) (5) of regulations nor did it mention the mootness doctrine or subject matter jurisdiction.


author: GRUENDEL, J.

text:
    KEVIN R. BURKE v. YVETTE BARR KLEVAN
    (AC 32258)
    Gruendel, Beach and West, Js.

      Argued June 3
    officially released July 26, 2011

      Allen A. Currier, for the appellant (plaintiff).

      Simon I. Allentuch, for the appellee (defendant).
   Opinion

GRUENDEL, J.

The plaintiff, Kevin R. Burke, appeals from the summary judgment rendered by the trial court in favor of the defendant, Yvette Barr Kievan. On appeal, the plaintiff claims that the court improperly concluded that his action was timed barred by the applicable statutes of limitations and could not be saved by General Statutes § 52-595. We disagree and, accordingly, affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history. In 1989, the parties commenced an intimate relationship that lasted approximately two years and ended abruptly when the plaintiffs wife discovered his extramarital affair with the defendant. Nonetheless, in July, 2005, the parties renewed their intimate relationship and began having unprotected sex regularly, given the defendant’s representation that she was “clean and sterile.” In October, 2005, the plaintiff was treated for symptoms of a urinary tract infection and, because he had never experienced such symptoms previously, inquired of the defendant whether she had ever been diagnosed with a venereal disease. Based on the plaintiffs inquiries, the defendant visited her gynecologist and was tested for various venereal diseases, including human papilloma virus (HPV) and genital herpes type-1 (herpes). On October 18, 2005, the defendant was informed that she was infected with both HPV and herpes. That same day, the defendant authorized her gynecologist to speak with the plaintiff regarding her test results, and the plaintiff was informed of her infections. The parties thereafter ended their relationship.

After the parties’ relationship ended, the plaintiff began experiencing advanced symptoms associated with HPV and herpes and attempted to contact the defendant in an effort to acquire more information as to her diagnosis, but the defendant refused to provide further information. On January 5, 2009, the plaintiff served a three count complaint on the defendant, alleging intentional infliction of emotional distress, misrepresentation or deceit and negligence on the basis of the parties’ sexual relationship and his infectious symptoms. The plaintiff later learned, on September 4, 2009, that he was infected with a specific strain of HPV that may cause cancer and filed an amended complaint on November 13, 2009, to include factual allegations in this regard.

On December 9,2009, the defendant filed an amended motion for summary judgment, arguing that the plaintiffs claims for intentional infliction of emotional distress and misrepresentation or deceit were time barred under General Statutes § 52-577, while the plaintiff’s claim for negligence was time barred under General Statutes § 52-584. Specifically, the defendant argued that the plaintiffs cause of action accrued no later than the day that he was informed of her infections, October 18, 2005, yet he failed to bring suit until approximately three years and three months later, well after the statutes of limitations had expired under both §§ 52-577 and 52-584. In opposition, the plaintiff argued that the statutes of limitations did not begin to run until September 4, 2009, the day that he learned of the full extent of his HPV infection. Additionally, the plaintiff argued that, even if the statutes of limitations began to run on October 18, 2005, the defendant’s fraudulent concealment of the precise nature of her infections served to toll the expiration of the statutes of limitations pursuant to § 52-595. A hearing was held on March 1, 2010, and the court issued a memorandum of decision granting the defendant’s motion for summary judgment on April 30, 2010. In so ruling, the court reasoned that the statutes of limitations began to run with respect to each of the plaintiffs counts on October 18, 2005, and “there is no issue of material fact which would have prevented the statute of limitations for counts one and two from expiring on October 18, 2008,” and that the statute of limitations for the negligence count “expired on October 18, 2007.” As such, the court concluded that the plaintiffs claims for intentional infliction of emotional distress and misrepresentation or deceit were time barred under § 52-577, while the plaintiffs claim for negligence was time barred under § 52-584. This appeal followed.

The plaintiff now claims that the court improperly granted the defendant’s motion for summary judgment. Specifically, the plaintiff argues that the court incorrectly concluded that the statutes of limitations began to run with respect to his cause of action on October 18, 2005, and that expiration of the statutes of limitations was not tolled by application of § 52-595.

“ [T]he scope of our review of the granting of a motion for summary judgment is plenary. . . . In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. . . . Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . Summary judgment may be granted where the claim is barred by the statute of limitations. . . .

“Although the application of this rule may result in occasional hardship, [i]t is well established that ignorance of the fact that damage has been done does not prevent the running of the statute, except where there is something tantamount to fraudulent concealment of a cause of action. . . . While the statute of limitations normally begins to run immediately upon the accrual of the cause of action, some difficulty may arise in determining when the cause or right of action is considered as having accrued. . . . The true test for determining the appropriate date when a statute of limitations begins to run is to establish the time when the plaintiff first successfully could have maintained an action. That is, an action cannot be maintained until a right of action is complete and hence, the statute of limitations cannot run before that time. ... A cause of action does not accrue for the purposes of a statute of limitations until all elements are present, including damages, however trivial. However, the occurrence of an act or omission— whether it is a breach of contract or of duty—that causes a direct injury, however slight, may start the statute of limitations running against the right to maintain an action even if the plaintiff is not aware of the injury, and even if all resulting damages have not yet occurred; it is sufficient if nominal damages are recoverable for the breach or for the wrong, and where that is the case, it is unimportant that the actual or substantial damage is not discovered or does not occur until later. The fact that the extent of the damages cannot be determined at the time of the wrongful act does not postpone the running of the statute of limitations.” (Citations omitted; internal quotation marks omitted.) Rosenfield v. I. David Marder & Associates, LLC, 110 Conn. App. 679, 684-86, 956 A.2d 581 (2008).

In the present case, we need not articulate the essential elements of the plaintiffs claims for intentional infliction of emotional distress, misrepresentation or deceit, and negligence, as it is abundantly clear that each of these claims accrued no later than October 18, 2005. Not only does the record show that the plaintiff began experiencing symptoms consistent with a HPV or herpes infection in October, 2005, it is undisputed that the plaintiff was informed at this time by the defendant’s gynecologist that the defendant had tested positive for both HPV and heipes. In addition to his physical symptoms, the plaintiff acknowledged that, when told of the defendant’s infections, he suffered extreme anxiety, as he “recognized the implication of [her infections].” The fact that the plaintiff claims he did not learn the full extent of his exposure to the defendant’s HPV infection until September 4, 2009, does not alter our analysis because “[t]he fact that the extent of the damages cannot be determined at the time of the wrongful act does not postpone the running of the statute of limitations.” (Internal quotation marks omitted.) Rosenfield v. I. David Marder & Associates, LLC, supra, 110 Conn. App. 686. Although the plaintiff claims that the defendant fraudulently concealed the precise nature of her diagnosis for HPV, he has failed to produce any evidence contradicting her assertion that she was not diagnosed with such an infection until October 18,2005. Nor has the plaintiff produced evidence demonstrating that the defendant concealed any element of his cause of action, which remained unchanged throughout the underlying proceedings. Indeed, the fact that the defendant authorized her gynecologist to disclose the results of her testing for venereal diseases is clearly more indicative of full disclosure than fraudulent concealment.

In sum, we conclude that the record demonstrates unequivocally that all of the plaintiffs claims against the defendant accrued no later than October 18, 2005. As such, the latest possible date that suit properly could be brought on these claims was October 18, 2008. The plaintiff, however, did not serve his complaint on the defendant until January 5, 2009. We therefore agree with the court that “there is no issue of material fact which would have prevented the statute of limitations . . . from expiring on October 18, 2008.” Accordingly, the court properly granted the defendant’s motion for summary judgment, and the plaintiffs claims to the contrary are unavailing.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs cause of action sounds in three counts: intentional infliction of emotional distress, misrepresentation or deceit, and negligence. It is undisputed that the intentional infliction of emotional distress and misrepresentation or deceit counts are governed by the three year statute of limitations pursuant to General Statutes § 52-577, while the negligence count is governed by the two year statute of limitations prescribed by General Statutes § 52-584.

       General Statutes § 52-595 provides: “If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence.”

       The defendant testified in her deposition that October 18, 2005, “was the first time [she] knew that [she] had [HPV and herpes].” The plaintiff has not produced any evidence to contradict this assertion.

       We note that there is a one day discrepancy between the date that the defendant testified her gynecologist spoke with the plaintiff and the date that the court found this conversation to have occurred. Nevertheless, our disposition of the plaintiffs appeal remains unaffected.

       The plaintiff testified in his deposition that when told initially of the defendant’s infections, “the first thing was [he] vomited. [He] was sick, because [he] recognized the implication of it. [He] avoided getting tested for months, just because [he] was upset. [He] did ultimately get tested, and [he is] positive [for HPV and herpes].”

       Notably, the specific counts of the plaintiffs cause of action remained the same throughout the underlying proceedings.


author: WEST, J.

text:
    FERNANDO BOSQUE v. COMMISSIONER OF CORRECTION
    (AC 32141)
    Lavine, Bear and West, Js.
    Argued April 18
    officially released July 26, 2011

      Justine F. Miller, special public defender, for the appellant (petitioner).

      SusannE. Gill, supervisory assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, Adam E. Mattei, special deputy assistant state’s attorney, and Gerard P. Eisenman, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

WEST, J.

The petitioner, Fernando Bosque, appeals following the habeas court’s denial of his petition for certification to appeal from the judgment denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court abused its discretion when it denied his petition for certification to appeal and improperly rejected his claim that his trial counsel rendered ineffective assistance by failing to file a motion to suppress the petitioner’s statement to police. We dismiss the appeal.

The relevant facts and underlying procedural history were set forth by this court in a decision affirming the petitioner’s conviction; see State v. Bosque, 106 Conn. App. 452, 942 A.2d 1036, cert. denied, 287 Conn. 913, 950 A.2d 1288 (2008); and in the habeas court’s memorandum of decision. “On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. At approximately 1:30 a.m. on November 5, 2004, the [petitioner], his brother, Benjamin Bosque, and Roberto Figueroa went to a Bridgeport apartment, a residence shared by three males and a female, all of whom were college students. The [petitioner] and his accomplices forcibly gained entry to the apartment after ringing the doorbell. The [petitioner] and his brother wore masks and brandished BB guns. Initially, three of the residents were at the apartment along with another male visitor. Thereafter, the fourth resident arrived home from work. At gunpoint, the intruders verbally disparaged, threatened and physically assaulted the occupants of the apartment and forced them into one room. The intruders ransacked the apartment for valuables, taking items such as home electronics, jewelry, mobile phones, cash and automatic teller machine cards. The intruders also forced the victims to reveal their personal identification numbers. During the invasion, the [petitioner] participated in a sexual assault of the female victim. Following their departure from the apartment, the [petitioner] and his accomplices took the stolen items to the home of the [petitioner’s] mother and proceeded to a bank where they withdrew money from the victims’ bank accounts.” Id., 454.

The petitioner was charged with conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (4), burglary in the first degree in violation of General Statutes § 53a-101 (a) (1), kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1) and five counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4). Id., 453-54. Subsequently, the petitioner was found guilty by a jury on all counts. The trial court rendered judgment of conviction and sentenced the petitioner to a total effective term of seventy years imprisonment, suspended after fifty years, seven of which were nonsuspendable, with thirty-five years probation. Throughout these underlying criminal proceedings, the petitioner was represented by attorneys H. Jeffrey Beck and Robert A. Photos. We affirmed the petitioner’s conviction on direct appeal. Id., 460.

The petitioner filed an amended three count petition for a writ of habeas corpus on May 7, 2009, in which he alleged that Beck rendered ineffective assistance of counsel. The petitioner alleged numerous deficiencies regarding the performance of his trial counsel; however, on appeal the petitioner asserts only his counsel’s decision not to file a motion to suppress the petitioner’s statement to police. Following a one day habeas trial, the court denied the petition for a writ of habeas corpus and denied the petition for certification to appeal. This appeal followed. Additional facts will be set forth as necessary.

The petitioner claims that the habeas court abused its discretion in denying certification to appeal because the issue of whether his counsel was ineffective in deciding not to file a motion to suppress the petitioner’s statement to police is one that is debatable among jurists of reason, could have been resolved differently, and, thus, warrants further consideration. See Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994). We do not agree.

We begin by setting forth the well settled standard of review and legal principles that guide our resolution of the petitioner’s appeal. “Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. [Id., 612]. To prove an abuse of discretion, the petitioner must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . . Id., 616, quoting Lozada v. Deeds, 498 U.S. 430, 432, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991). If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits. Id., 612. We examine the petitioner’s underlying claim[s] of ineffective assistance of counsel in order to determine whether the habeas court abused its discretion in denying the petition for certification to appeal.” (Internal quotation marks omitted.) Atkinson v. Commissioner of Correction, 125 Conn. App. 632, 637, 9 A.3d 407 (2010), cert. denied, 300 Conn. 919, 14 A.3d 1006 (2011).

To prove a constitutional claim of ineffective assistance of counsel, a habeas petitioner must establish both deficient performance on the part of counsel and actual prejudice as a result of counsel’s deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “To satisfy the performance prong . . . the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. ... To satisfy the prejudice prong, a [petitioner] must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. . . . The claim will succeed only if both prongs are satisfied. ... [A] reviewing court can find against a petitioner on either ground, whichever is easier.” (Citation omitted; internal quotation marks omitted.) Fernandez v. Commissioner of Correction, 291 Conn. 830, 835, 970 A.2d 721 (2009).

“A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” (Emphasis in original; internal quotation marks omitted.) Davey B. v. Commissioner of Correction, 114 Conn. App. 871, 876, 971 A.2d 735 (2009).

“In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous .... The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given their testimony.” (Internal quotation marks omitted.) Joseph v. Commissioner of Correction, 117 Conn. App. 431, 433, 979 A.2d 568, cert. denied, 294 Conn. 906, 982 A.2d 1080 (2009). “Questions of whether to believe or to disbelieve a competent witness are beyond our review.” (Internal quotation marks omitted.) Kiniry v. Kiniry, 299 Conn. 308, 329, 9 A.3d 708 (2010).

At the habeas trial, the petitioner attempted to demonstrate that Beck was deficient in deciding not to file a motion to suppress the petitioner’s statement to the police. In the petitioner’s statement he claimed that, although he was present during the crimes, his codefendant, Figueroa, led the home invasion, and he was merely an observer. In the present case, the petitioner testified that at the time he gave his statement to police, he could not read or write in either Spanish or English. The petitioner also testified that despite looking over and signing his statement on each of the five pages, which were typed by the police and included an attached photographic array, the petitioner believed that the statement was actually a promise to appear. The habeas court rejected this assertion and found that the petitioner’s testimony was “entirely not credible . . . .” The habeas court articulated several contradictions that illustrated the petitioner’s lack of credibility. For example, when asked by the police, prior to signing his statement, “[c]an you read or write English?” the petitioner responded in the affirmative. Moreover, the petitioner’s claim not to understand English further was contradicted by Beck’s testimony that at no time during the course of his representation of the petitioner did he ever experience any difficulty communicating with the petitioner, nor was he aware that the petitioner had problems reading or understanding English. Beck also testified that the petitioner was “aware of the details in all of the documents discussed, and he fully participated in the discussion of all the material.”

Beck further testified that the petitioner’s defense was premised on the facts that were set forth in the petitioner’s statement to the police, which put him at the scene of the home invasion but attempted to minimize his role in the crimes. Beck also testified that he decided not to file a motion to suppress the statement so that the petitioner’s statement would be admitted into evidence without the risk of the petitioner testifying and being cross-examined. Additionally, Beck testified that he had tried approximately fifty to sixty criminal trials and that if he had suspected that his client could not understand English competently, he would have provided an interpreter and filed a motion to suppress the statement to the police. After the hearing, the habeas court found that Beck’s decision not to have the petitioner testify at the trial was made for tactical reasons and was the product of sound trial strategy. Although Beck later testified that in hindsight he might have pursued a motion to suppress the petitioner’s statement, we note that “[h]indsight will almost always reveal possible alternatives in trial tactics, so that the claim of ineffective representation must be examined as of the time the questioned representation occurred.” (Internal quotation marks omitted.) Levine v. Manson, 195 Conn. 636, 649, 490 A.2d 82 (1985). As such, we agree with the habeas court’s finding that Beck’s decision not to file a motion to suppress the petitioner’s statement to police was a product of sound trial strategy, and, therefore, further agree that Beck’s representation fell within the range of reasonable professional competency under Strickland. In light of the petitioner’s having failed to meet his burden of proof under the first prong of Strickland, we conclude that he has failed to prove the merits of his claim.

Having reviewed the record, and for the reasons set forth previously, we conclude that the petitioner has failed to establish that the issues he raises before us are debatable among jurists of reason such that a court could resolve the issues in a different manner or that the questions raised deserve encouragement to proceed further. See Simms v. Warden, supra, 230 Conn. 616. Accordingly, we conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal from the judgment denying the petition for a writ of habeas corpus.

The appeal is dismissed.

ha this opinion the other judges concurred.

       In count two of the amended petition, the petitioner brought an ineffective assistance of counsel claim related to Photos’ representation; however, the habeas court found that the claim concerning Photos “[was] wholly unsupported, without merit, and deemed abandoned.” On appeal, the petitioner does not raise any claim concerning the habeas court’s resolution of count two.

       In count three of the amended petition, the petitioner alleged that his due process rights were violated when he was charged with having violated and thereafter was convicted under § 53a-92 (a) (2) (A), kidnapping in the first degree. Relying on State v. Salamon, 287 Conn. 509, 542, 949 A.2d 1092 (2008), the petitioner appears to argue that the trial court erred when it failed to instruct the jury that if the kidnapping was incident to the restraint of the victim in connection with the crimes of sexual assault in the first degree in violation of § 53a-70 (a) (1) and robbery in the first degree in violation of § 53a-134 (a) (4), then the petitioner must have intended to prevent the victim’s liberation for a longer period of time or to a greater degree than was necessary to commit the sexual assault and the robbery. See id. The habeas court denied that claim without prejudice. The petitioner has not challenged that denial in this appeal.

       Furthermore, the habeas court described the petitioner’s statement to the police as “a shameless attempt to minimize his own role in the terrifying crimes . . . .”

       Because the petitioner has not met his burden of proof under the first prong of Strickland, we do not reach the second prong.