author: LANDAU, J.

text:
    STATE OF CONNECTICUT v. STANLEY T. VALINSKI
    (AC 17466)
    O’Connell, C J., and Landau and Daly, Js.
    Argued November 30, 1998
    officially released April 28, 1999

      Robert J. McKay, for the appellant (defendant).

      Robert J. Scheinblum, assistant state’s attorney, with whom were Dawn Gallo, deputy assistant state’s attorney, and, on the brief, Andrew M. Wittstein, supervisory assistant state’s attorney, for the appellee (state).

       April 28,1999, the date t hat this decision was rereleased as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

LANDAU, J.

The defendant, Stanley T. Valinski, appeals from the judgment of conviction, rendered after a trial in part to the court and in part to the jury, of operating a motor vehicle while his license was under suspension in violation of General Statutes (Rev. to 1995) § 14-215 (c), failure to drive on the right in violation of General Statutes § 14-230 (a) and operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a.

The defendant was charged in a two part information. In part B of the information, the state alleged that the defendant was subject to an enhanced penalty based on a previous conviction for operating a motor vehicle while under the influence of liquor. Thereafter, the defendant pleaded nolo contendere to part B of the information. On appeal, the defendant claims that (1) as a matter of law, § 14-215 is inapplicable to the facts of this case, (2) the state’s evidence was insufficient to sustain a guilty verdict, (3) the state engaged in prosecutorial misconduct by misrepresenting to the jury that it would call a certain witness and (4) the trial court’s unchallenged instructions were misleading and confusing. We reverse the judgment of the trial court in part.

The jury reasonably could have found the following facts. The parties stipulated that on December 15,1994, the defendant was convicted of operating a motor vehicle while under the influence of liquor or drugs in violation of § 14-227a (a). As a result of the conviction, the department of motor vehicles (department) suspended the defendant’s operating privileges on January 13, 1995. On January 14, 1995, the department issued a work permit to the defendant.

On Saturday, May 13, 1995, State Trooper Kevin Albanese stopped the defendant’s vehicle on Route 44 in Canaan after twice observing it swerve in and out of the oncoming lane and nearly strike a guardrail post after it drifted over the white shoulder line. While waiting for the defendant’s license and registration, Albanese asked the defendant where he had been. The defendant replied that he was returning from a fishing trip with his dog. After Albanese reviewed the work permit that the defendant handed him and noticed the restrictions on the permit, he again inquired of the defendant where he had been. This time, the defendant replied that he was returning from a fishing trip with several business associates, but, when asked, was unable to supply their names.

After receiving the defendant’s information, Albanese contacted Troop B in North Canaan and confirmed that the defendant’s right to operate a motor vehicle was under suspension. Albanese detected a strong odor of alcohol and noticed that the defendant’s eyes were red and glassy. On the basis of the defendant’s erratic driving, the strong odor of alcohol and the appearance of the defendant’s eyes, Albanese believed that the defendant was operating while under the influence of alcohol. After administering three field sobriety tests, Albanese confirmed his belief. Thereafter, Albanese arrested the defendant and transported him to Troop B, where the defendant refused to submit to any further testing.

Following a jury trial, a verdict of guilty was returned on the three noninfraction counts: two counts of operating a motor vehicle while his license was under suspension and one count of operating a motor vehicle while under the influence of intoxicating liquor. On the charge of failure to drive on the right, the court made a finding of guilty. On June 5, 1997, the trial court denied the defendant’s motion to dismiss and his motion for a mistrial. On June 6, 1997, the trial court denied the defendant’s amended motion for judgment of acquittal at the close of evidence. Thereafter, on June 25, 1997, the trial court granted the defendant’s motion to set aside the verdict on one count of operating a motor vehicle while his license was under suspension and denied the defendant’s motions for judgment of acquittal on the remaining charges and for new trial. This appeal followed. Other facts will be discussed where relevant to the issues in this appeal.

I

Initially, we address the defendant’s numerous claims challenging the state’s authority to charge him with a violation of § 14-215, operating a motor vehicle while his license was under suspension. Essentially, the substance of the question he raises in these claims is whether, as a matter of law, § 14-215 is applicable to the facts of this case. The state responds that on the basis of the plain language and the legislative intent behind the enactment of § 14-215, there is no merit to the defendant’s claim that he was exempt from prosecution under § 14-215 simply because he possessed a special operator’s permit pursuant to General Statutes § 14-37a. We agree with the state.

Because this is an issue of first impression, which raises a question of law requiring our construction of § 14-215, our analysis is governed by well established principles of statutory construction. Accordingly, our review is plenary. See State v. Swain, 245 Conn. 442, 451, 718 A.2d 1 (1998).

“ ‘Our fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, 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.’ ” Edelstein v. Dept. of Public Health & Addiction Services, 240 Conn. 658, 664, 692 A.2d 803 (1997). Furthermore, “principles of statutory construction . . . require us to construe a statute in a manner that will not thwart its intended purpose or lead to absurd results. . . . We must avoid a construction that fails to attain a rational and sensible result that bears directly on the purpose the legislature sought to achieve.” (Citations omitted.) Turner v. Turner, 219 Conn. 703, 712-13, 595 A.2d 297 (1991). “ ‘Where the legislative intent is clear there is no room for statutory construction.’ ” Kelemen v. Rimrock Corp., 207 Conn. 599, 606, 542 A.2d 720 (1988). A primary rule of statutory construction is that “when the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent.” American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987).

General Statutes (Rev. to 1995) § 14-215 (c) provides in relevant part that “[a]ny person who operates any motor vehicle during the period his operator’s license or right to operate a motor vehicle in this state is under suspension ... on account of a violation of subsection (a) of section 14-227a . . . shall be fined not less than five hundred dollars nor more than one thousand dollars and imprisoned not more than one year, thirty consecutive days of which may not be suspended or reduced in any manner.” We conclude that the language of § 14-215 (c) is plain and unambiguous and, accordingly, resort to legislative history is unnecessary. See State v. Lubus, 216 Conn. 402, 407, 581 A.2d 1045 (1990).

The plain meaning of § 14-215 conveys a clear intention to provide the state with the legal authority to prosecute any person who operates a motor vehicle outside the scope of the work permit while his or her license is under suspension. Accordingly, we also conclude that the trial court did not improperly deny the defendant’s motions and the prosecutor did not improperly charge the defendant.

II

The defendant claims that the trial court’s instructions were misleading and confusing. Specifically, the defendant claims that the constitutionally deficient instructions in this case violated his due process rights under the state and federal constitutions. The defendant concedes that this claim is unpreserved but maintains that it is reviewable pursuant to State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and Practice Book § 60-5.

We will review the claim under Golding because the record is adequate for review and the defendant alleges the violation of a fundamental right to due process. See State v. Delgado, 50 Conn. App. 159, 170, 718 A.2d 437 (1998); see also State v. Walker, 33 Conn. App. 763, 769, 638 A.2d 1084, cert. denied, 229 Conn. 913, 642 A.2d 1209 (1994) (claim that jury instructions diminish state’s burden of proof constitutional in nature). Having satisfied the first and second requirements of Golding, we must consider whether the defendant has satisfied the third requirement of Golding. We conclude that the claim fails because the alleged constitutional violation did not clearly exist and did not clearly deprive the defendant of a fair trial.

The following additional facts and procedural history are necessary for the resolution of this issue. In its charge, the trial court instructed the jury on the law governing the case and its application during deliberations. The court first instructed the jury regarding the state’s burden of proving guilt beyond a reasonable doubt. Thereafter, the court instructed on the specific charges against the defendant. Following the instruction on the charge of operating a motor vehicle while under the influence of intoxicating liquor, the court instructed the jury on direct and circumstantial evidence and that the cumulative effect of reliance on either type of evidence must be the conclusion that the elements were proven beyond a reasonable doubt. Immediately thereafter, the court instructed the jury regarding the scope of the work permit and the defendant’s burden of proving by a preponderance of the evidence that he was operating a motor vehicle within that scope.

Later in the charge, the court repeated that “the state must prove beyond a reasonable doubt that the defendant was under the influence of intoxicating liquor while operating the motor vehicle” and “it has been the obligation of the state to prove all of the elements charged against the defendant beyond a reasonable doubt.”

“ ‘At the outset, we note that under . . . Golding, a defendant may prevail on an unpreserved constitutional claim of instructional error only if, considering the substance of the charge rather than the form of what was said, it is reasonably possible that the jury was misled. ... In determining whether the jury was misled, [i]t is well established that [a] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. . . . Furthermore, [a] jury instruction is constitutionally adequate if it provides the jurors with a clear understanding of the elements of the crime charged, and affords them proper guidance for their determination of whether those elements were present.’ ” State v. Delgado, supra, 50 Conn. App. 171.

Thus, we consider whether the trial court’s instructions were improper in light of the entire charge. The defendant claims that trial court improperly instructed the jury that the defendant must prove by a fair preponderance of the evidence that he was operating a motor vehicle within the scope of his work permit. Specifically, the defendant claims that requiring a jury to apply this standard of proof violates the constitutionally required principles that a defendant is presumed innocent and bears no burden of proof while the state bears the burden of persuading the jury of guilt beyond a reasonable doubt. We agree that the instruction was improper and reverse the judgment of the trial court.

We first address the defendant’s claim that the trial court’s improper jury instructions undermined the constitutional principle of presumption of innocence. We disagree.

We are guided in the resolution of this claim by State v. Coleman, 14 Conn. App. 657, 544 A.2d 194, cert. denied, 208 Conn. 815, 546 A.2d 283 (1988). In Coleman, the court noted that “the presumption of innocence and the state’s burden of proving guilt beyond a reasonable doubt are ‘logically similar.’ [Taylor v. Kentucky, 436 U.S. 478, 484, 98 S. Ct. 1930, 56 L. Ed. 2d 468 (1978).] [The Taylor] court stated that the presumption of innocence ‘is not evidence—not even an inference drawn from a fact in evidence—bu t instead is a way of describing the prosecution’s duty both to produce evidence of guilt and to convince the jury beyond a reasonable doubt’ Id., 483-84 n.12. . . .

“In Taylor, the court defined the principal function of the presumption of innocence: It is aimed to ensure that the jury bases its decision solely on the evidence presented, and not on extraneous factors such as arrest, information, arraignment, custody and the status of the defendant as an accused. Taylor v. Kentucky, supra, [436 U.S. 484-86]. . . . The effect of an instruction on the presumption of innocence ‘simply represents one means of protecting the accused’s constitutional right to be judged solely on the basis of proof adduced at trial.’ [Id., 486].” (Citations omitted.) State v. Coleman, supra, 14 Conn. App. 669-70.

A review of the instructions in this case reveals that the trial court explicitly instructed the jury that it could not decide the case on the basis of factors other than the evidence produced at trial. Specifically, the trial court instructed the jury that it could not decide the case on factors such as the arrest, the information or the defendant’s status as the accused. “The jury are presumed to follow the court’s directions in the absence of a clear indication to the contrary. ” (Internal quotation marks omitted.) State v. Teti, 50 Conn. App. 34, 45, 716 A.2d 931, cert. denied, 247 Conn. 921, 722 A.2d 812 (1998). There is no indication in the present case that this jury did not follow the court’s directions as to the presumption of innocence standard. As such, the trial court’s charge to the jury had nothing to do with the presumption of innocence principle and, therefore, did not undermine that principle and mislead the jury. See State v. Coleman, supra, 14 Conn. App. 670.

We turn next to the defendant’s claim that the trial court’s improper jury instructions impermissibly diluted the state’s burden of proving the defendant’s guilt beyond a reasonable doubt and impermissibly placed the burden of proof on him. We agree.

“It is fundamental that any person accused of a crime is presumed innocent unless and until the state has proven his guilt by establishing each essential element of the crime charged beyond a reasonable doubt. In re Winship, 397 U.S. 358, 363, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) .... The reasonable doubt standard provides concrete substance for the presumption of innocence—that bedrock axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our criminal law. [Id., 363.] The requirement of proof beyond a reasonable doubt protects the fundamental value determination of our society, given voice in Justice Harlan’s concurrence in Winship, that it is far worse to convict an innocent man than to let a guilty man go free.” (Citations omitted; internal quotation marks omitted.) State v. Taylor, 239 Conn. 481, 512, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997); see also State v. DelVecchio, 191 Conn. 412, 420, 464 A.2d 813 (1983) (trial court’s charge on reasonable doubt standard must be clear and unequivocal). “The standard of proof beyond a reasonable doubt refers to the degree of certainty that the evidence produces in the minds of the jurors.” State v. Coleman, supra, 14 Conn. App. 671.

“Furthermore, it is well established that [a]n instruction that dilutes the state’s burden, or places a burden on the defendant to prove his innocence, is unconstitutional. Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct., 2450, 61 L. Ed. 2d 39 (1979).” (Internal quotation marks omitted.) State v. Taylor, supra, 239 Conn. 512-13. “Where the defendant’s contention is that the instructions on this standard diluted or impaired the constitutional requirement of proof of guilt beyond a reasonable doubt that contention must be examined ‘with the greatest care and concern.’ ” State v. DelVecchio, supra, 191 Conn. 420.

The state argues that “the defendant’s claim is in the nature of an exception or an exemption, and the trial court correctly placed the burden on the defendant to prove his defense by a preponderance of the evidence.” In support of this argument, the state contends that “[i]t is the general rule that where exceptions to a prohibition in a criminal statute are situated separately from the enacting clause, the exceptions are to be proven by the defense.” State v. Tinsley, 181 Conn. 388, 402, 435 A.2d 1002 (1980), cert. denied, 449 U.S. 1086, 101 S. Ct. 874, 66 L. Ed. 2d 811 (1981). The state’s reliance on Tinsley, however, is misplaced. Tinsley involved a discussion of General Statutes § 29-35, which states the elements necessary to prove the crime charged and, in a separate clause, sets forth exceptions to a violation of the statute. Section 14-215, however, does not include exceptions to its violation.

The state also relies on State v. Arroyo, 181 Conn. 426, 435 A.2d 967 (1980). In Arroyo, our Supreme Court stated that “[i]t is constitutionally permissible for the state to place the burden on a criminal defendant to prove by a preponderance of the evidence elements which would constitute an affirmative defense but which do not serve to negate any essential element of the crime which the state has the burden of proving beyond a reasonable doubt in order to convict.” Id., 430. Furthermore, the state argues that “[t]he federal due process clause does not bar state legislatures from placing the burden on a defendant to prove an affirmative defense or to prove that he or she falls within an exemption to liability for an offense.” (Emphasis added.) State v. Hart, 221 Conn. 595, 611, 605 A.2d 1366 (1992).

The state’s reliance on Arroyo and Hart, however, is also misplaced. Arroyo concerns General Statutes § 53a-67 (b), which explicitly states that in a prosecution for an offense under this statute, it is an affirmative defense that the parties were living together by mutual consent in a relationship of cohabitation. Similarly, Hart is concerned with the language of General Statutes § 21a-269, which places the burden of persuading the jury by a preponderance of the evidence on a defendant invoking the exemption set forth in General Statutes § 21a-278 (b). In the present case, the state legislature has not included language within § 14-215 that indicates that a work permit issued pursuant to § 14-37a is an affirmative defense to a violation of § 14-215, thereby placing the burden on the defendant to prove that he was operating a motor vehicle within the scope of a work permit.

“A defendant has the burden of persuasion only when it is declared to be an affirmative defense in the statute, in which case he must establish such defense only by a preponderance of the evidence. [General Statutes] § 53a-12 (b).” C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 4.5.3 (g), p. 83. “As to such an independent fact [sanity], as with regard to other affirmative defenses, the legislature has the constitutional authority to allocate the burden of proof to the defendant rather than to the state.” (Emphasis added; internal quotation marks omitted.) State v. Cole, 50 Conn. App. 312, 319-20, 718 A.2d 457, cert. granted on other grounds, 247 Conn. 937, 722 A.2d 1217 (1998), quoting State v. Joyner, 225 Conn. 450, 464-65, 625 A.2d 791 (1993). Our review of existing affirmative defenses fails to reveal any affirmative defense created by our legislature that relates to a work permit issued pursuant to § 14-37a. It is the prerogative of the legislature, not the courts, to establish affirmative defenses. See State v. Hart, supra, 221 Conn. 611; State v. Cole, supra, 319-20. Accordingly, the challenged language in the trial court’s charge improperly shifted the burden of proof to the defendant on the issue of whether he operated a motor vehicle within the scope of a work permit. The charge, therefore, violated the principles set forth in Sandstrom v. Montana, supra, 442 U.S. 510, and In re Winship, supra, 397 U.S. 358.

This determination, however, “does not end the inquiry because such an error is harmless if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Faust, 237 Conn. 454, 470, 678 A.2d 910 (1996); State v. Cerilli, 222 Conn. 556, 584, 610 A.2d 1130 (1992).

In the present case, the trial court instructed the jury that it could find the defendant not guilty if it found that the defendant “sustained his burden in proving that [he was operating his motor vehicle within the scope of a work permit] by a preponderance of the evidence.” (Emphasis added.) Later in its charge, the trial court repeated the instruction that the state had the burden of proving each element of the crime charged beyond a reasonable doubt. While we are aware that a charge to the jury is to be read as a whole and that individual instructions are not to be evaluated in isolation from the overall charge; State v. Delgado, supra, 50 Conn. App. 171; we conclude that under the facts of this case, the concept of reasonable doubt, that degree of certainty that we require in the minds of the jurors, was not properly before the jury because of the flawed instruction. The trial court’s instruction on the defendant’s burden of proof effectively reduced the state’s burden of proving each element of the crime beyond a reasonable doubt. See State v. DelVecchio, supra, 191 Conn. 424-25.

On the basis of our review of the record before us, we conclude that in discussing the critical subject of burden of proof, the trial court’s incorrect instruction misled the jury. See State v. Rodgers, 198 Conn. 53, 58-59, 502 A.2d 360 (1985). Accordingly, we cannot conclude that the instructional error was harmless beyond a reasonable doubt.

The judgment is reversed only as to the defendant’s conviction of operating a motor vehicle while his license was under suspension and the case is remanded for a new trial on that charge.

In this opinion the other judges concurred.

       The case was tried to a jury except for the count alleging a violation of General Statutes § 14-230 (a).

       General Statutes (Rev. to 1995) § 14-215 (c) provides in relevant part: “Any person who operates any motor vehicle during the period his operator’s license or right to operate a motor vehicle in this state is under suspension ... on account of a violation of subsection (a) of section 14-227a or section 53a-5fib or 53a-60d or pursuant to section 14-227b, shall be fined not less than five hundred dollars nor more than one thousand dollars and imprisoned not more than one year, thirty consecutive days of which may not be suspended or reduced in any manner.”

       Because the defendant has failed to brief the issue of why the judgment of conviction under §§ 14-230 (a) and 14-227a should be reversed, it is deemed to be abandoned. See Nazarko v. Conservation Commission, 50 Conn. App. 548, 550 n.2, 717 A.2d 850, cert. denied, 247 Conn. 940, 941, 723 A.2d 318 (1998). The only conviction at issue in this appeal, therefore, is the defendant’s conviction under § 14-215 (c).

       In his second claim, the defendant claims that the state’s evidence was insufficient to sustain the jury’s guilty verdict. Specifically, the defendant claims that the evidence in this case proved by a preponderance of the evidence that the defendant operated a motor vehicle within the scope of a work permit. The defendant claims that by finding him guilty, the jury failed to follow the court’s charge that it could find him not guilty if he proved by a preponderance of the evidence that he operated a motor vehicle within the scope of a work permit. In other words, although the claim is couched as a sufficiency challenge, actually, the defendant’s claim is that the jury inappropriately chose to disbelieve certain testimony concerning the work permit. In light of our reversal of the judgment in part II of this opinion on the basis that the trial court improperly instructed the jury as to the defendant’s burden of proof, we need not address this claim as we cannot determine whether it will likely occur on retrial.
      The defendant claims in his third claim that prosecutorial misconduct deprived him of a fair trial, namely, his right to an impartial jury, in violation of the due process clause of article first, § 8, of the constitution of Connecticut. Specifically, the defendant’s prosecutorial misconduct claim is that the state’s “knowing use of misleading testimony may violate due process,” as the state misrepresented to the jury that it would call a certain witness. We note that the defendant refers to the statement that the prosecutor made to the jury as testimony. The prosecutor, however, did not offer this statement in the form of testimony. It is well settled that statements made by counsel are not evidence. State v. Sauris, 227 Conn. 389, 404, 631 A.2d 238 (1993). As noted, because we reverse the judgment on the basis of the defendant’s fourth claim, we need not address this claim as it is not clear that it will arise again upon retrial.

       The parties also stipulated that this predicate conviction was an element of the offense of § 14-215 (c).

       Terry Zietler, a department employee who decides whether to accept applications for a special permit to operate a motor vehicle to and from work, testified that the defendant’s right to operate was suspended on January 13,1995. The suspension notice sent to the defendant on January 3, 1995, however, indicates that “[effective January 14,1995, [the defendant’s] Connecticut driver’s license [was] suspended.”

       The record indicates that with respect to a separate incident unconnected to this appeal, the defendant, a self-employed advertising agent, applied for a work permit on September 7, 1994, which was valid until December 13, 1994. In a letter dated January 9,1995, the defendant requested an extension of the 1994 work permit. Thereafter, the defendant’s work permit was extended until January 14, 1996. In the permit application, and again in his letter dated January 9, 1995, the defendant indicated that he needed the permit only to drive to meet with clients and to shoot, record and edit radio and television commercials.

       The prosecutor conducted the following examination of Albanese:
      ‘■Q. What did [the result of the third field sobriety test] indicate?
      “A. There was another building block with the priors that the person was operating under the influence.
      "Q. Now, based upon your experience and training and what you had just seen the defendant do, you are talking with him and you are following him in your car, did you form an opinion as to the state of sobriety?

        “A. Yes.
      “Q. And what was that opinion?
      “A. I believe he was operating under the influence.”

       Thereafter, the trial court sentenced the defendant on the operating under suspension charge to one year, execution suspended after the mandatory minimum thirty days to serve, with two years probation, and, on the operating under the influence charge, to one year, execution suspended after the mandatory minimum ten days to serve, consecutive to the second count, with two years probation.

       Because similar arguments are raised as to each claim, we treat them together. Specifically, the defendant’s claims regarding the denial of his motion to dismiss, motion for a mistrial, motion for judgment of acquittal and mol ion for a new trial present similar arguments, which raise a question of law involving the interpretation of § 14-215. The defendant claims that the state’s evidence proved that, although the defendant’s license was under suspension, he had a work permit that, allowed him to operate a motor vehicle. Furthermore, the defendant claims that § 14-215 neither mentions a work permit nor provides for a violation where a motorist is found to have operated a motor vehicle outside the scope of a work permit. The defendant claims that the only authority in this state governing the improper use of a work permit is found in General Statutes § 14-37a. Accordingly, the defendant, asserts that the state lacked the legal authority to prosecute him under § 14-215 and he, therefore, should have been acquitted of the charges brought against him under § 14-215.
      The defendant also asserts as part of his prosecutorial misconduct claim; see part III; that the prosecutor engaged in misconduct by charging the defendant with an unsubst antiated count of operat ing a motor vehicle while his license' was under suspension, which the prosecutor knew was improper. Essentially, the defendant claims that because the prosecutor was aware that the defendant possessed a work permit and that no authority in this state allows the prosecution of a permit holder under § 14-215, charging the defendant with a violation of operating a motor vehicle while his license was under suspension under § 14-215 was equivalent to charging the defendant falsely.

       Furthermore, another principle of statutory construction requires that a statute that imposes criminal liability should be strictly construed and that ordinarily ambiguities should be resolved in favor of the defendant. State v. Harrell, 238 Conn. 828, 832, 681 A.2d 944 (1996). As we have stated, § 14-215 is unambiguous. The doctrine of strict construction, however, “is only one of the aids which is to be used in the construction of penal statutes. . . . Other aids include such things as the statutory language itself, legislative history where available, the furthering of the policy and purposes fairly apparent from the statute which include the mischief sought to be proscribed and related statutes.” (Citation omitted.) Singh v. Singh, 213 Conn. 637, 646-47, 569 A.2d 1112 (1990). Our conclusion is supported by a review of the legislative history of § 14-215, which indicates that our “legislature . . . promulgated an unambiguous policy aimed at ensuring that our highways are safe from the carnage associated with drunken drivers. . . . The legislature enacted the statutes governing the operation of motor vehicles . . . for the protection of the lives and property of the citizens of this state.” (Citations omitted; internal quotation marks omitted.) State v. Swain, supra, 245 Conn. 456.
      Considering that policy, the legislature could not have meant § 14-215 to apply to all motorists except those driving with a valid work permit, thereby implying that a permit holder operating a motor vehicle for an unauthorized purpose is less dangerous than any other motorist operating a motor vehicle while his license was under suspension on account of operating while under the influence of intoxicating liquor. In this case, the defendant operated his motor vehicle outside the scope of his permit and did so while under the influence of alcohol. Were we to construe the statute as the defendant suggests, we would defeat the purpose of the legislature by reading into the statute an exemption that is not clearly stated and creating an absurd result.

       The defendant invokes his due process rights under both the fifth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. We note that the defendant, however, “does not claim . . . that he is entitled to any greater protection under the due process clause of the state constitution than he is under the analogous provision of the federal constitution. For purposes of this appeal, therefore, we treat the state and federal due process clauses as embodying the same level of protection.” State v. Austin, 244 Conn. 226, 237 n.11, 710 A.2d 732 (1998).
      The defendant also claims that the instructions violated his right to a jury trial, to an impartial jury trial, under both the sixth and fourteenth amendments to the United States constitution and article first, §§ 8, 19, of the Connecticut constitution. Because the defendant has failed to brief how the instructions violated his right to a jury trial, or to an impartial jury trial, we decline to review the claim as it is deemed to be abandoned. See Nazarko v. Conservation Commission, 50 Conn. App. 548, 550 n.2, 717 A.2d 850, cert. denied, 247 Conn. 940, 941, 723 A.2d 318 (1998).

       “Under Golding, a defendant can prevail on an unpreserved claim of constitutional error only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. . . . The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review.” (Citations omitted; internal quotation marks omitted.) State v. Otero, 49 Conn. App. 459, 463 n.6, 715 A.2d 782, cert. denied, 247 Conn. 910, 719 A.2d 905 (1998).

       Practice Book § 60-5 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. ...”

       The trial court instructed the jury as follows: “Now in this case, as in all criminal prosecutions, the defendant is presumed to be innocent until proven guilty. Now, he must be proven guilty beyond a reasonable doubt. Now, this presumption of innocence was with this defendant when he was first presented for trial in this case. It continues with him throughout the trial unless and until such time as all of the evidence produced here . . . satisfies you beyond a reasonable doubt that he is guilty. Now, the burden to prove the defendant guilty of the crime of which he is charged is upon the state. The defendant does not have to prove his innocence. This means that the state must prove, beyond a reasonable doubt, each and every element necessary to constitute the crime charged.
      “Whether the burden of proof resting upon the state is sustained depends not on the number of witnesses nor on the quantity of the testimony, but on the nature and quality of the testimony. Please bear in mind, that one witness’ testimony is sufficient to convict if it establishes all of the elements of the crime beyond a reasonable doubt.
      “Now, the meaning of reasonable doubt can be arrived at by emphasizing the word reasonable. It is not a surmise, it is not a guess, or mere conjecture. Nor is it doubt suggested by ingenuity of counsel or of a juror not warranted by the evidence. It is such a doubt as, in serious affairs that concern you, you would heed; that is, such a doubt as would cause reasonable men and women to hesitate to act on it in matters of importance. It is not hesitation springing from any feelings of pity or sympathy for the accused or any other person who might be affected by your decision. It is, in other words, a real doubt, an honest doubt, a doubt that has its foundation in the evidence or lack of evidence. It is doubt that is honestly entertained and reasonable in light of the evidence after a fair comparison and careful examination of the entire evidence in the case. Proof beyond a reasonable doubt does not mean proof beyond all doubt. The law does not require absolute certainty on the part of the jury before it returns a verdict of guilty. The law requires that, after hearing all of the evidence, if there is something in the evidence or lack of evidence that leaves in the minds of the jurors as reasonable men and women a reasonable doubt as to the guilt of the accused, then the accused must be given the benefit of the doubt and must be acquitted. Proof beyond a reasonable doubt is proof that precludes every reasonable hypothesis except guilt and is inconsistent with any other rational conclusion.”

       The trial court first instructed the jury on the charge of operating a motor vehicle while one’s license is under suspension and then on the charge of operating a motor vehicle while under the influence of intoxicating liquor. The trial court charged the jury on the former as follows: “[The defendant] is also charged with operating under suspension in two counts. And I will bring to your attention the fact that there is a stipulation of the parties relative to that offense. In addition, there has been evidence offered to you concerning the element of that operating under suspension, and I will instruct you that a person commits the crime of operating under suspension when he operates a motor vehicle on a public highway when his right or privilege to operate has been suspended. Now, in one of those counts there is the claim that the defendant was operating under suspension when his license was suspended for a conviction of a violation of ... § 14-227a. There is a stipulation for you to consider on that is marked as court exhibit one and it relates directly to those facts, those elements.”

       The trial court instructed the jury as follows: “Now, ladies and gentlemen, in this case, there was submitted to you, and will be submitted to you by way of a document and by way of testimony, that at the time and place alleged in the information, that is, in May of 1995, the defendant was operating under a [work] permit. Now, [a work permit] issued in accordance with § 14-37a . . . permits a person to operate a motor vehicle to and from his place of employment or if he’s not employed at a specific or fixed location, to operate a motor vehicle in connection with, and to the extent necessary, to perform his business or profession. Now, if you find by a preponderance of the evidence that the defendant was operating Iris motor vehicle within the context oí a [work] permit, you may find the defendant not guilty. Now, proof by apreponderance of the evidence means, considering all of the evidence fairly and impartially, enough evidence as produces in your mind a reasonable belief that is sought to be proven is more likely true than not true. This means you take all the evidence offered on this issue by both the defendant and state, you weigh it and balance it. If the better and weightier evidence inclines in the defendant’s favor, then he has sustained his burden in proving that defense by a preponderance of the evidence.”

       The defendant also claims that the trial court’s failure to instruct the jury regarding whether the defendant’s stipulation that he was convicted in December, 1994, of a violation of § 14-227a (a) was intended to apply to the charge of operating a motor vehicle while his license was under suspension in violation of § 14-215 (a) or (c), and that they had the option to return a guilty verdict on either charge, misled the jurors to believe that they had no choice but to find the defendant guilty of both. Because we reverse the judgment, and the charge of operating a motor vehicle while his license was under suspension in violation of § 14-215 (a) was dismissed, we need not address this claim.
      In addition, the defendant claims that the trial court improperly instructed the jury regarding the defendant’s burden of proof immediately following the charge of operating a motor vehicle while under the influence of intoxicating liquor rather than after the charges of operating a motor vehicle while his license was under suspension and, as such, the jury was misled by the burden placed on the defendant, resulting in a dilution of the state’s burden of proof. In light of our reversal of the judgment on the basis of the defendant’s claim that the jury was not properly instructed as to the defendant’s burden of proof, we need not address this claim because it is not clear that it will arise again.

       We note that the state must prove “beyond a reasonable doubt ... all the elements of the crime and the defendant’s participation or responsibility, but «oí . . . each evidentiary fact. . . . It is only where a particular subordinate fact is essential to the proof of an element of the crime that it must be proved beyond a reasonable doubt.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Rodgers, 198 Conn. 53, 58 n.1, 502 A.2d 360 (1985); see also C. Tait, & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 4.4.2, p.75.

       “We have equated this constitutionally required formulation of the harmless error standard; see State v. Coleman, [supra, 14 Conn. App. 678-81]; with our formulation that an instructional constitutional error is harmless if there is no reasonable possibility that the jury was misled. See State v. Mercer, [208 Conn. 52, 73-74, 544 A.2d 611 (1988)]. We perceive no functional difference between the two formulations.” (Internal quotation marks omitted.) State v. Faust, 237 Conn. 454, 470 n.18, 678 A.2d 910 (1996).

       See footnote 20.


source: Caselaw Access Project

author: HEALEY, J.

license: Public Domain

text:
    PAUL TWICHELL v. NANCY L. GUITE ET AL.
    (AC 18019)
    Spear, Landau and Healey, Js.

      Argued December 15, 1998
    officially released April 27, 1999

      Thomas Behrendt, with whom, on the brief, was EdwardMattison, for the appellant (named defendant).

      Dennis J. OBrien, for the appellee (plaintiff).
   Opinion

HEALEY, J.

The defendant Nancy L. Quite appeals from the trial court’s judgment denying her July 11, 1997 motion to open a judgment of strict foreclosure of a judgment lien rendered on February 19, 1997. In her motion to open, she alleged that she was defaulted for her failure to appear and sought to open the judgment because the trial court allegedly lacked subject matter jurisdiction. She contended that such jurisdiction was lacking because an indispensable party was not joined as a defendant. In addition, she alleged that she was made a defendant “when the plaintiff knew she was mentally incompetent to defend herself.” The trial court, in its thorough memorandum of decision on her motion to open, denied the motion.

Prior to setting out the issues and our analysis, it will be helpful to relate some of the factual background of this case, which covers a period of more than twenty years. The defendant Nancy L. Guite and the plaintiff Paul Twichell are mother and son. Late on Christmas Eve in 1975, the plaintiff was apparently playing his stereo very loudly in the house in which he and his mother lived in Coventry, which is the subject property of the strict foreclosure involved in this case. Guite requested that he turn down his stereo, but he did not. She then took a twelve gauge shotgun and pointed it at Twichell. In an ensuing struggle, the shotgun went off and he was shot in the arm. On November 18, 1977, Twichell brought an action in two counts against his mother and father, Charles B. Guite, Sr., seeking money damages for injuries arising out of the 1975 shooting.

On November 15, 1977, a Superior Court judge granted a prejudgment remedy against Nancy L. Guite and Charles B. Guite, Sr., attaching the Coventry real estate in the amount of $70,000. This attachment was filed in the Coventry land records on November 18, 1977. On December 15, 1977, the defendant Nancy L. Guite was defaulted in the tort action for failure to appear. On April 6, 1978, less than five months after the tort action was instituted, the defendant Nancy L. Guite transferred her interest in the property by quitclaim deed1 * to the defendant Paula M. Peters, then known as Paula M. Twichell, who was her daughter. Thereafter, the trial court held a hearing in damages in the underlying tort action. In its December 21, 1979 written memorandum of decision, the court awarded the plaintiff the sum of $45,000 plus costs. The defendant Nancy L. Guite was neither present nor did she participate in that hearing through counsel. On January 4, 1980, a certificate of judgment lien was filed in the Coventry land records.

Nothing was done to foreclose the 1980 judgment hen until the institution of this foreclosure action in January, 1996. On August 14,1996, the defendant Nancy L. Guite and the other defendants were defaulted for failure to appear in that action. On February 19, 1997, a judgment of strict foreclosure of the plaintiffs 1980 judgment lien was rendered. All of the then defendants, including Nancy L. Guite, were given law days, but none of those defendants redeemed. On July 11, 1997, an attorney representing the defendant Nancy L. Guite filed a motion to open the foreclosure judgment of February 19, 1997, which generated this appeal.

On appeal, the defendant Nancy L. Guite claims that the trial court improperly (1) determined that she was mentally competent to defend this foreclosure action and the underlying tort action, (2) failed to grant her a hearing on her July, 1997 motion to open the 1997 foreclosure judgment, thus violating her right to due process under the fourteenth amendment to the United States constitution and (3) failed to open the foreclosure judgment, which was obtained by default, as untimely.

The defendant Nancy L. Guite claims first that her mental incompetency permeates not only the strict foreclosure itself, but also the events that took place during the 1970s. She claims that her mental incompetency requires an evidentiary hearing as to the 1997 foreclosure judgment obtained by default, as well as the underlying 1979 tort judgment also obtained by default, “notwithstanding the plaintiffs judicial admission of her incompetency.”

We begin our discussion of the defendant Nancy L. Guite’s claimed mental incompetency by referring, as she does, to the plaintiffs 1977 complaint in the tort action, which she claims contains a judicial admission by the plaintiff of her incompetency. Actually, that complaint contains two counts with the first count directed to the defendant Nancy L. Guite and the second count to heríate husband, Charles B. Guite, Sr. The first count contains no allegation of the defendant Nancy Guite’s incompetency. The second count, however, does allege that Charles B. Guite, Sr., “for a long time prior [to the 1975 shooting] was aware of the emotional and mental instability of . . . Nancy L. Guite.”

In considering the matter of mental incompetency, it must be acknowledged that “[m]ental impairments admit of a wide variety of conditions of varying degrees of severity, depending upon the particular case.” 53 Am. Jur. 2d 460, Mentally Impaired Persons § 1 (1996). Our Supreme Court, in construing a complaint in an action challenging the validity of the grantor to convey certain of her real estate, has had occasion to parse the allegation that the grantor was “mentally weak and incompetent.” (Internal quotation marks omitted.) Hayes, Conservator v. Candee, 75 Conn. 131, 136, 52 A. 826 (1902). The Hayes court said that “ [t]he words ‘mentally incompetent’ have no strict technical meaning; they do not necessarily mean that the person to whom they are applied is an idiot, or non compos mentis; they merely indicate a relative, and not an absolute, lack of mental ability.” Id. Thus, “[a]n individual may be competent for one purpose but not for another . . . .” (Citation omitted.) Adoption of Kirk, 35 Mass. App. 533, 537, 623 N.E.2d 492 (1993), rev. denied, 416 Mass. 1110, 629 N.E.2d 1004 (1994). Even today, statutory definitions are not in complete uniformity but depend on particular cases. See, e.g., General Statutes §§ 17a-458 (chapter 319 defining persons with psychiatric disabilities); 17a-495 (defining mentally ill person); 54-56d (defining competent for purposes of starting trial). Recently, in a termination case, our Supreme Court said, “By definition, a mentally incompetent person is one who is unable to understand the nature of the termination proceeding and unable to assist in the presentation of his or her case. See General Statutes § 54-56d (a); Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (I960).” In re Alexander V., 223 Conn. 557, 563, 613 A.2d 780 (1992). Nor should we overlook the presumption that a person is competent and capable of defending a case brought against him. See Kirwan v. State, 168 Conn. 498, 503, 363 A.2d 56 (1975).

As to the claimed judicial admission by the plaintiff in the 1977 complaint, we conclude that that allegation does not, under the circumstances of this case, constitute a determination that she was mentally incompetent so as not to be capable of understanding and defending this litigation. We note, on the matter of the defendant Nancy L. Guite’s awareness, that the clerk of the trial court wrote a letter to her, dated November 29, 1977, referring to an earlier letter sent by the defendant Nancy L. Guite to the clerk. The clerk’s November 29, 1977 letter suggested that Guite consult an attorney. Moreover, there is a suggestion that the plaintiff himself was not totally candid with the court on the matter of the defendant Nancy L. Guite’s mental state at the time the default for failure to appear was rendered in 1977. We cannot accept any such view because the allegation concerning her emotional and mental instability was plainly in the complaint. The position that a guardian ad litem should have been appointed for her, under General Statutes § 45a-132, cannot be accepted. Such an appointment is only discretionary, and no claim is made that plaintiffs counsel ever requested it. Furthermore, under the circumstances, we see no valid reason for that court to have sua sponte appointed a guardian ad litem in 1977. The events that took place only a few months later demonstrate clearly not only the competency of the defendant Nancy L. Guite during this period but also the lack of necessity for the appointment of a guardian ad litem.

The events we refer to occurred early in 1978, not long after the defendant Nancy L. Guite was defaulted for failure to appear in the tort action and not long after a prejudgment remedy was awarded as to the real estate involved in the underlying tort action. It is a fair assumption that the defendant Nancy L. Guite or someone on her behalf heeded the clerk’s November 29,1977 letter to consult an attorney. As the trial court pointed out, the file of attorney Mark Shapera, who instituted the 1977 tort action on the plaintiffs behalf, contained notes on a telephone call from attorney Joel Rottner on January 8, 1978, that Shapera would ‘.‘give Rottner three weeks, February 1, call him before claiming it” as well as a letter dated March 19,1978, to Rottner stating that “I am notifying you that I have reclaimed my motion for default against Mr. & Mrs. Guite.” The trial court also had before it a letter, dated March 19, 1978, to Shapera from the defendant Nancy L. Guite, informing him that “we were at the courthouse on the appointed day.” The trial court’s decision significantly states that “the [March 19, 1978] letter does not purport to claim any defense to the tortious conduct, but rather refers to and acknowledges her understanding of the prospect that ‘it, is quite possible we could lose the family property.' " (Emphasis added.)

Shortly thereafter, on April 6, 1978, the defendant Nancy L. Guite signed and acknowledged a quitclaim deed transferring her interest in the Coventry real estate to her daughter. This was done less than five months after the plaintiff instituted the tort action. She claims, however, that she lacked the mental competency to convey her interest effectively.

Our Supreme Court has said that “[t]he test of [a grantor’s] mental capacity to make the deeds . . . was whether at the time of executing them he possessed ‘understanding sufficient to comprehend the nature, extent and consequence’ of them. 1 Swift Dig. 173; Hale v. Hills, 8 Conn. 39, 44 [1830].” Nichols v. Nichols, 79 Conn. 644, 657, 66 A. 161 (1907). The occasion on which a person deeds away her interest in her lifelong home is a serious one, which, in this instance, was witnessed and acknowledged in a quitclaim deed. “An acknowl-edgement is the formal declaration, before an authorized official, by the person who executed an instrument, that it is his free act and deed.” Commercial Credit Corp. v. Carlson, 114 Conn. 514, 517, 159 A. 352 (1932). Moreover, the execution of the deed took place before witnesses. The trial court was not persuaded that this defendant lacked the mental capacity to transfer her property freely. The trial court also determined that the defendant’s execution of the deed, under the circumstances existing at the time, was not “a mere coincidence, unrelated to the commencement of the [tort] suit.” We agree.

The trial court could have reasonably concluded, as it did, that the defendant Nancy L. Guite did understand the advisability of obtaining counsel, the nature of the tort claim, the prospect of an adverse judgment and its consequences concerning her interest in the property. In addition, it is a fair inference that in 1977 and 1978, she appreciated the fact that she was sued because of the 1975 Christmas Eve incident. The defendant Nancy L. Guite’s conduct was hardly that of a person who was not aware and who did not know what she was doing.

Having now concluded from the record that the defendant Nancy L. Guite was mentally competent at the relevant stages of this litigation, including when she executed the quitclaim deed on April 6, 1978, we must determine the effect of the execution of the deed on this appeal. It raises the question of whether this appeal has been rendered moot because the defendant, the sole appellant, deeded away her interest in the real estate that is the subject matter of this action on April 6, 1978, when she was mentally capable of doing so. We conclude that her appeal is rendered moot.

“Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties. See 5 Am. Jur. 2d, Appellate Review § 642 (1995).” Connecticut Natural Gas Corp. v. Dept. of Consumer Protection, 43 Conn. App. 196, 203, 682 A.2d 547, cert. denied, 239 Conn. 938, 684 A.2d 707 (1996).

“Since mootness implicates subject matter jurisdiction; Sadlowski v. Manchester, 206 Conn. 579, 583, 538 A.2d 1052 (1988); it can be raised at any stage of the proceedings. See Sobocinski v. Freedom of Information Commission, 213 Conn. 126, 134-35, 566 A.2d 703 (1989). We have consistently held that we do not render advisory opinions. If there is no longer an actual controversy in which we can afford practical relief to the parties, we must dismiss the appeal. Sadlowski v. Manchester, [supra, 583]. . . . Board of Educations. New Haven, 221 Conn. 214, 216, 602 A.2d 1018 (1992). 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 . . . that there be an actual controversy between or among the parties to the dispute: Courts exist for determination of actual and existing controversies, and under the law of this state the courts may not be used as a vehicle to obtain judicial opinions on points of law. . . . [W]here the question presented is purely academic, we must refuse to entertain the appeal. . . . Hallas v. Windsor, 212 Conn. 338, 347, 562 A.2d 499 (1989). A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists. . . . Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 439 n.3, 685 A.2d 670 (1996).” (Internal quotation marks omitted.) Domestic Violence Services of Greater New Haven, Inc. v. Freedom of Information Commission, 240 Conn. 1, 6-7, 688 A.2d 314 (1997). An issue is moot when the court can no longer grant any practical relief. See Ivimey v. Water-town, 30 Conn. App. 742, 754, 622 A.2d 603, cert. denied, 226 Conn. 902, 625 A.2d 1375 (1993); Shays v. Local Grievance Committee, 197 Conn. 566, 571, 499 A.2d 1158 (1985); see also Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 (1944); In re Catrina L., 47 Conn. App. 64, 67, 701 A.2d 1058 (1997). In a word, “[[Jurisdiction over an appeal requires the existence of an actual and existing controversy.” Groesbeck v. Sotire, 1 Conn. App. 66, 68, 467 A.2d 1245 (1983). “Mootness deprives this court of subject matter jurisdiction. Loisel v. Rowe, 233 Conn. 370, 378, 660 A.2d 323 (1995); First Trust National Assn. v. Hitt, 36 Conn. App. 171, 174, 649 A.2d 798 (1994).” In re Corey E., 40 Conn. App. 366, 369, 671 A.2d 396 (1996).

There can be no question that the defendant Nancy L. Guite executed the quitclaim deed of April 6, 1978. Such a deed is “an ordinary and primary instrument of conveyance and conveys to the grantee whatever interest the grantor has in the property.” Hoyl v. Ketcham, 54 Conn. 60, 62, 5 A. 606 (1886). She has had no record interest in the subject property since that deed was recorded on May 14, 1978. The 1978 quitclaim deed not only extinguished her record interest but also rendered inappropriate her joinder in this action as a party defendant. “Anyone having a present interest in the property in question is a necessary party to this action because he or she holds a known interest in the land which would be affected by the relief sought. McShan v. Sherrill, 283 F.2d 462, 463-64 (9th Cir. 1960).” Graham v. Zimmerman, 181 Conn. 367, 372, 435 A.2d 996 (1980). The defendant has no present interest in the property in question. There is no actual existing controversy in this appeal between the plaintiff and the defendant. There is no practical relief that can be afforded to the defendant Nancy L. Guite in this appeal. Her voluntary act in 1978 deeding away her interest in the real estate has extinguished her standing as a party to this litigation, including this appeal. In addition, her conduct, at a time when the trial court concluded that she understood the nature of the tort claim against her, the prospect of a judgment and its consequences and the advisability of obtaining counsel, casts serious doubts on her motive in executing the 1978 deed.

In any event, the present appeal is moot because of a lack of subject matter jurisdiction. “Although this issue was not raised by the parties, the court has a duty to dismiss, even on its own initiative, any appeal that it lacks jurisdiction to hear.” Sasso v. Aleshin, 197 Conn. 87, 89, 495 A.2d 1066 (1985). Because our resolution of that issue is dispositive of the appeal, we do not consider the merits of the remainder of the defendant’s claims.

The appeal is dismissed.

In this opinion the other judges concurred.

       In its memorandum of decision on tire defendant Nancy L. Guite’s motion to open, the trial court referred to a motion filed by the plaintiff to open the February 19, 1997 foreclosure judgment for the purpose of citing in Charles B. Guite, Jr., a son of the defendant Nancy L. Guite. There is no dispute that he is the indispensable party to whom Nancy L. Guite’s motion to open refers.
      In its memorandum of decision, the trial court discussed not only Nancy L. Guite’s request to open the February, 1997 decree of strict foreclosure of the judgment lien but also the opening of a 1979 judgment against her in a tort action, which we discuss later, that formed the basis of the judgment lien involved. The last sentence of the trial court’s memorandum of decision states: “The court denies the motion to open the foreclosure judgment or the 1979 judgment, which resulted in the judgment lien forming the basis for the foreclosure judgment.”

       The first count was against Nancy Guite and it alleged that she committed a battery on her son in that she “discharged a loaded shotgun on [him].” The second count was directed against the plaintiffs father, Charles B. Guite, Sr., who was alleged to be the owner of the shotgun. That count also alleged that, for a long time prior to the Christmas Eve shooting, his father “was aware of the emotional and mental instability of . . . Nancy L. Guite, and yet he allowed her to use said shotgun.” The second count, thereafter, alleges that “Charles B. Guite was negligent in permitting or allowing . . . Nancy L. Guite, to use said shotgun to harm the plaintiff.” The defendant Nancy L. Guite points to the “emotional and mental instability” language in the second count as a judicial admission of her mental incompetency.

       The record reveals that on August 7, 1986, Charles B. Guite, Sr., transferred his interest in the Coventry real estate by quitclaim deed to the defendants Paula M. Peters (his daughter) and Michael T. Peters, and that deed was recorded in the Coventry land records on May 7, 1986.

       Thereafter, Paula Twichell transferred her interest by quitclaim deed to herself and her then husband, Michael T. Peters. Subsequent, to the commencement of the present foreclosure action in 1996, Paula M. Peters and Michael Peters transferred the property to Charles Guite, Jr., whom the trial court assumed was the son of Charles B. Guite, Sr., and Nancy Guite. This latter transfer was unknown to the plaintiff.

       The December 21, 1979 memorandum of decision stated: “The plaintiff testified as to his injury and the court observed the horribly disfigured right arm of the plaintiff. After observing how the plaintiff is unable to use the arm, the court concludes that it is totally disabled.” Medical special damages were found to be $20,217.51.

       The judgment secured by the judgment lien was wholly unsatisfied at that time and remains so. The February 19,1997 judgment of strict foreclosure of this lien found the debt owing thereunder now to be $119,258.88.

       The foreclosure judgment found the debt to be $119,258.38. The real estate was appraised at $40,000, which the court found to be the fair market value of the property.

       There is no indication in the record when that attorney filed his appearance but the defendant Nancy Guite was represented by counsel, at least since that motion was filed.

       There is no evidence that a conservator was ever appointed by the court for the defendant Nancy Guite up to and including the time of the taking of the appeal to this court on January 20,1998, from the trial court’s decision of December 5, 1997.

       This letter was attached to the plaintiffs brief in opposition to the defendant’s July 11,1997 motion to open the judgment of strict foreclosure.

       At oral argument, the defendant’s counsel suggested that the defendant Nancy L. Guite’s children prevailed upon her and that they were playing “hot potato” with the 1978 deed “as they continued to do.” When asked for the evidence of this, he said: “I must acknowledge there’s nothing in the record to this effect.” The defendant’s brief states, however, that “[she] is not asserting fraud on the part of the plaintiff.” Moreover, the trial court found that the plaintiff “did nothing to conceal the defendant’s mental instability” from either the judge who issued the prejudgment remedy or the judge who held the 1979 hearing in damages, which awarded $40,000 damages to the plaintiff.

       Prior to oral argument on this appeal, counsel were alerted to be prepared to address whether this appeal was moot insofar as it challenges the trial court’s denial of the motion to open the judgment of strict foreclosure and they were referred to General Statutes § 49-15 and Barclays Bank of New York v. Ivler, 20 Conn. App. 163, 165, 565 A.2d 252, cert. denied, 213 Conn. 809, 568 A.2d 792 (1989). The matter was addressed by counsel during oral argument, as was the impact on this appeal of the defendant’s 1978 quitclaim deed transferring her interest in the property.

       There is no claim, nor does the record disclose that there was any conveyance to her since that date re-creating any record interest in this property in the defendant Nancy L. Guite.


author: SCHALLER, J.

text:
    DAVID W. EDELMAN v. PACIFIC EMPLOYERS INSURANCE COMPANY ET AL.
    (AC 18011)
    Schaller, Hennessy and Sullivan, Js.
    Argued January 20
    officially released April 27, 1999

      Conrad Ost Seifert, with whom, on the brief, was John Blazi, for the appellant (plaintiff).

      Michael J. Rose, with whom were Christopher M. Vossler and, on the brief, Philip T. Newbury, Jr., for the appellees (defendants).
   Opinion

SCHALLER, J.

This appeal arises from the trial court’s order granting the motion for summary judgment filed by the defendant Pacific Employers Insurance Company, hereinafter referred to as the defendant, and the defendant Cigna Property and Casualty Companies with respect to a controversy between the defendant and the plaintiff, David W. Edelman, regarding insurance coverage to be provided by the defendant under a policy that it issued. The trial court held that, under the terms of the general commercial liability policy, the defendant owed no duty to defend the underlying lawsuit brought by the plaintiff against the defendant’s insured, Patrick R. Hibbits. On appeal, the plaintiff claims that the trial court improperly determined that Hibbits was not an insured under the policy. We affirm the judgment of the trial court.

The following facts and procedural history provide the background necessary to the disposition of this appeal. Hibbits and his wife, Janice B. France, operated The Inn at Falls Village, Inc., and resided on the premises. On November 1, 1988, Hibbits became intoxicated on the inn’s premises and assaulted his wife who subsequently called the state police. The plaintiff, a state trooper, was dispatched to aid another trooper in dealing with Hibbits. By the time the troopers arrived, Hib-bits had gone to an upstairs room at the inn. As the troopers approached and told Hibbits that he was under arrest, Hibbits became combative, abusive and violent. Hibbits became increasingly combative as he was being taken to the police cruiser and began to assault the state troopers. Because he continued to be combative even after being placed in the cruiser, the plaintiff attempted to restrain Hibbits’ legs, at which time Hib-bits kicked the plaintiff twice in the head in rapid succession and with great force.

The plaintiff subsequently brought suit against the inn, Hibbits and Hibbits’ wife in three counts. Count one of the complaint alleged that the inn negligently exposed a known alcoholic to alcohol who, in turn, injured the plaintiff. Count two alleged that Hibbits negligently assaulted the plaintiff. The final count alleged that Hibbits and his wife acted negligently in their corporate capacities as officers of the corporation by exposing a known alcoholic to alcohol who, in turn, injured the plaintiff.

Prior to the incident, the defendant had issued a commercial general liability policy to Hibbits and his wife in connection with their conducting the business of the inn. They each demanded a defense pursuant to the policy. The defendant declined to defend on the basis that the acts alleged in the complaint were not covered by the policy because the coverage of the policy was limited to the “conduct of the business” that the insured owned. The defendant claimed that Hibbits’ assault on the plaintiff was not part of Hibbits’ conducting the business of the inn.

On August 25, 1993, Hibbits and the inn stipulated to a judgment in favor of the plaintiff in the amount of $150,000. As part of the stipulated judgment, Hibbits and the inn agreed to assign whatever rights they might have against the defendant to the plaintiff in exchange for the plaintiff’s agreement not to enforce the stipulated judgment against Hibbits or the inn.

After the defendant failed to satisfy the judgment, the plaintiff brought the present action, pursuant to both General Statutes § 38a-321 and the common law, alleging breach of contract, bad faith, and violations of the Connecticut Unfair Insurance Practices Act, General Statutes § 38a-815 et seq., and the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. The complaint asserted, inter alia, that the defendant breached its contract of insurance by failing to defend and indemnify Hibbits and the inn. After the pleadings were closed, the defendant moved for summary judgment on all counts of the complaint, claiming that it was not obligated to provide Hibbits or the inn with a defense in the underlying action nor was it obligated to indemnify Hibbits and the inn.

The trial court agreed with the defendant and concluded that (1) counts one and three of the underlying complaint were excluded from coverage under the liability policy’s liquor exclusion, (2) the corporation was not an insured under the policy, (3) count two of the underlying complaint did not state a claim for business related conduct in that Hibbits’ assault on the plaintiff was outside the scope of his business duties and (4) Hibbits’ acts were excluded from coverage under the liability policy’s intentional acts exclusion. Because all of the counts of the complaint were derivative of the plaintiffs claim that the defendant breached its duty to defend and indemnify under the policy, the trial court rendered summary judgment in favor of the defendant.

In this appeal, the plaintiff argues that count two of the underlying complaint triggered coverage and the duty to defend and indemnify. Specifically, the plaintiff claims that summary judgment was improperly rendered because the trial court incorrectly determined that Hibbits was not an insured under the policy. The plaintiff does not argue with the trial court’s determination that Hibbits was not an insured under the basic policy because the assault on the plaintiff was outside the scope of Hibbits’ business duties. Rather, the plaintiff argues that Hibbits was an insured because an endorsement to the policy modified and expanded the policy’s basic coverage to include conduct outside the scope of Hibbits’ business duties. The defendant contends, conversely, that count two of the underlying complaint did not trigger a duty to defend because the plaintiffs injuries did not arise out of the ownership, maintenance or use of the premises. Because we conclude that Hibbits was not an insured under the endorsement, the defendant was not obligated to provide a defense or indemnify Hibbits with respect to the allegations contained in count two of the underlying complaint.

“[A]n insurer’s duty to defend ... is determined by reference to the allegations contained in the [injured party’s] complaint. Flint v. Universal Machine Co., [238 Conn. 637, 646, 679 A.2d 929 (1996)]. The duty to defend an insured arises if the complaint states a cause of action which appears on its face to be within the terms of the policy coverage. . . . Hogle v. Hogle, 167 Conn. 572, 576, 356 A.2d 172 (1975). Because [t]he duty to defend has a broader aspect than the duty to indemnify and does not depend on whether the injured party will prevail against the insured; Missionaries of the Co. of Mary, Inc. v. Aetna Casualty & Surety Co., 155 Conn. 104, 110, 230 A.2d 21 (1967); [i]f an allegation of the complaint falls even possibly within the coverage, then the insurance company must defend the insured. . . . West Haven v. Commercial Union Ins. Co., 894 F.2d 540, 544 (2d Cir. 1990), quoting West Haven v. Liberty Mutual Ins. Co., 639 F. Sup. 1012, 1017 (D. Conn. 1986).” (Emphasis in original; internal quotation marks omitted.) Imperial Casualty & Indemnity Co. v. State, 246 Conn. 313, 323-24, 714 A.2d 1230 (1998).

In this case, whether the defendant had a duty to defend under the policy depends on whether the policy’s use of the language “arising out of the . . . use of . . . the premises” was intended to include or exclude the factual allegations contained in the complaint. Therefore, we must examine the policy to determine whether coverage was provided for the plaintiffs injuries.

“Unlike certain other contracts . . . where . . . the intent of the parties and thus the meaning of the contract is a factual question subject to limited appellate review . . . construction of a contract of insurance presents a question of law . . . which this court reviews de novo.” (Internal quotation marks omitted.) Flint v. Universal Machine Co., supra, 238 Conn. 642. “An insurance policy is to be interpreted by the same general rules that govern the construction of any written contract and enforced in accordance with the real intent of the parties as expressed in the language employed in the policy. Schultz v. Hartford Fire Ins. Co., 213 Conn. 696, 702, 569 A.2d 1131 (1990). The determinative question is the intent of the parties, that is, what coverage the . . . [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy. . . . O’Brien v. United States Fidelity & Guaranty Co., 235 Conn. 837, 842, 669 A.2d 1221 (1996). It is axiomatic that a contract of insurance must be viewed in its entirety, and the intent of the parties for entering it derived from the four comers of the policy. Flint v. Universal Machine Co., [supra, 643]. The policy words must be accorded their natural and ordinary meaning . . . [and] any ambiguity in the terms of an insurance policy must be construed in favor of the insured because the insurance company drafted the policy. . . . Hansen v. Ohio Casualty Ins. Co., 239 Conn. 537, 542-43, 687 A.2d 1262 (1996).” (Internal quotation marks omitted.) Imperial Casualty & Indemnity Co. v. State, supra, 246 Conn. 324-25.

The dispute concerning the applicability of the endorsement centers on the meaning of the word “use”; whether the plaintiffs injuries, caused by Hibbits’ assault while resisting arrest, arose from Hibbits’ “use” of the premises leased to him. The policy and its endorsement do not define the term in any meaningful way. Nor can we discern any contextual pattern in the employment of the term that sheds any particular light on whether the word “use” was intended to have a broad or narrow interpretation. Aetna Life & Casualty Co. v. Bulaong, 218 Conn. 51, 61, 588 A.2d 138 (1991). We do note, however, that the term is employed in the endorsement in such a way as to limit the endorsement’s scope of coverage, which suggests the term was intended to have a narrowing or limiting meaning.

In Webster’s Third New International Dictionary, one meaning of the word “use” is “the legal enjoyment of property that consists in its employment, occupation, exercise, or practice.” Under that definition, the plaintiffs injuries did not arise from Hibbits’ employment, occupation or exercise of the premises, but rather from his acts, resisting arrest and assaulting the plaintiff, while on the property. The plaintiff contends that “[Hib-bits] used the premises to consume alcohol and got drunk. He carried out his purpose by means of the premises.” In determining whether the injuries arose from the use of the premises, we do not, however, focus on Hibbits’ act of consuming alcohol, but, rather, on the mechanism that directly caused the plaintiffs injuries, i.e., Hibbits’ assault of the plaintiff while he resisted arrest.

Our Supreme Court has held that the definition of “use” is closely akin to that of care, custody and control. Alderman v. Hanover Ins. Group, 169 Conn. 603, 607, 363 A.2d 1102 (1975). Our Supreme Court in Alderman employed a widely recognized definition of the word “use” to determine that the plaintiff in that case had not used a certain piece of property for purposes of a policy’s exclusions. The court found that an insured “uses” property only where he puts it to his own service or to the purpose for which it was ordinarily intended. Id.

In this case, we conclude that Hibbits’ assault of the plaintiff while he resisted arrest was not an ordinarily intended use of that part of the inn’s premises leased to him. Using one’s property to resist arrest and to assault a state trooper is not an ordinarily intended use of a premises. Even the plaintiff recognized that Hibbits did not use the premises for the purpose for which it was ordinarily intended. In his reply brief, the plaintiff stated that “it is conceded that residents do not ‘use’ their homes to negligently assault state troopers.”

Because we conclude that the plaintiffs injuries did not arise out of the ordinarily intended use of that part of the premises leased to Hibbits, Hibbits was not an insured under the liability policy’s endorsement. Therefore, the defendant was not obligated to provide a defense or to indemnify Hibbits with respect to the allegations contained in count two of the underlying complaint. The trial court properly granted summary judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       Pacific Employers Insurance Company is a subsidiary of Cigna Property and Casualty Companies.

       Because we find this issue dispositive, we need not reach the plaintiffs other claim that the trial court improperly determined that Hibbits’ acts were intentional and not within the coverage of the policy. Nor do we find it necessary to address the defendant’s claim that the trial court’s order was proper for the alternate ground that Hibbits’ acts were not “occurrences” and, thus, not within the coverage of the policy.

       The relevant section of the policy provides:
      “SECTION II—WHO IS AN INSURED

        1. If you are designated in the Declarations as:
      a. An individual, you and your spouse are insureds, but only with respect to the conduct of a business of which you are the sole owner.”

       The defendant argues that the plaintiff failed to preserve this claim. Because this issue was presented to the trial court in the plaintiffs supplemental memorandum, we conclude that it was raised within the meaning of Practice Book § 60-5. Additionally, we conclude that an adequate appellate record exists to review this claim.

       See footnote 2.

       The endorsement provides in relevant part: “WHO IS INSURED (Section II) [see footnote 3] is amended to include as an insured [Patrick Hibbits and Janice B. France] but only with respect to liability arising out of the ownership, maintenance or use of that part of the premises leased to you . . . .” (Emphasis added.)


author: DUPONT, J.

text:
    MYRA KRAMER ET AL. v. ROBERT J. PETISI ET AL.
    (AC 18078)
    Hennessy, Sullivan and Dupont, Js.
    Argued February 17
    officially released April 27, 1999

      William F. Gallagher, with whom, on the brief, was Kurt D. Koehler, for the appellants (plaintiffs).

      Andrew B. Nevas, for the appellees (defendant Robert S. Scanlon et al.).
   Opinion

DUPONT, J.

This is an action to quiet title in which the plaintiffs, Myra Kramer and Gary Kramer, appeal from the judgment of the trial court rendered following the granting of a motion for summary judgment as to count eight of their complaint in favor of the defendants Robert Scanlon and Theresa Stetson-Scanlon. On appeal, the plaintiffs claim that the motion for summary judgment was improperly granted because issues of material fact exist as to whether the plaintiffs acquired the disputed property by adverse possession. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. On October 10, 1996, the plaintiffs filed an eight count complaint. Only the eighth count, which was brought against the defendants, is the subject of this appeal. Count eight alleges that on September 26, 1994, the plaintiffs purchased certain property located at 2228 North Street, Fairfield. The plaintiffs assert that they and their predecessors used and enjoyed a 9941 square foot area of land adjacent to this property for a period of more than fifteen years, resulting in the acquisition of title by the plaintiffs to the disputed property by adverse possession. The defendants are the record owners of 2250 North Street, the property adjacent to the plaintiffs property, which contains the 9941 square foot area of land.

The trial court’s memorandum of decision sets forth the following facts. Sometime in 1978, the plaintiffs’ predecessors, John Edel and Jacqueline Edel, purchased 2228 North Street, and the defendants’ predecessor, Eugene Hall, purchased 2250 North Street. Hall is John Edel’s uncle. When Hall first purchased 2250 North Street, the property contained only a swimming pool and minor structures, and he subsequently built a house and began residing at the property in May, 1983. Subsequent to their purchase of 2228 North Street, the Edels erected a fence on Hall’s property near the northern portion of their property to keep their child away from the swimming pool on Hall’s property and to prevent the Edels’ horses from entering Hall’s property. The enclosed area included the 9941 square foot area at issue in this case.

The plaintiffs claim that from the time the fence was built in 1978 until 1990, when the Edels sold 2228 North Street, the Edels used and maintained the disputed property continuously and uninterruptedly as their own, and that Hall never used that property as his own. The plaintiffs claim in count eight that the disputed area has been used by them and their predecessors for more than fifteen years prior to April 23, 1996. The defendants filed an answer and special defenses, alleging that the disputed property was used with the consent of the defendants’ predecessors. The defendants also filed a counterclaim seeking to quiet title and to collect damages for trespass and unjust enrichment.

On May 3, 1997, the defendants filed a motion for summary judgment as to count eight of the complaint, claiming that the plaintiffs could not prove their claim of adverse possession. In support of their motion, the defendants attached an affidavit of Hall, stating that the Edels erected a fence on a portion of Hall’s property with his knowledge and permission and the reasons the fence was erected, that he “lent” the Edels that property and that the entire time the Edels used the portion of his property that was on their side of the fence, they did so with his knowledge and consent. The defendants argued that the plaintiffs could not prove that the owners of the disputed property were ousted for a period of at least fifteen years and that that occurred without the license or consent of the owners. The plaintiffs filed a memorandum in opposition with supporting documents and the trial court heard oral argument on the motion.

On July 25, 1997, the trial court granted summary judgment in favor of the defendants as to count eight of the plaintiffs complaint. The trial court concluded that “[t]he issues raised by the plaintiffs in their opposition memorandum do not demonstrate that genuine issues of material fact are in dispute. The affidavit of Hall makes it clear that hostile possession could not have begun before Hall moved from 2250 North Street on January 4, 1985. Therefore, it is not possible for the plaintiffs to show that they and their predecessors in title held the 9941 square feet of property behind the Hall-Edel fence in adverse possession.”

On October 6, 1997, the trial court granted the plaintiffs’ motion to reargue and corrected its decision to reflect that summary judgment was granted as to some of the allegations in count eight, but that the judgment did not dispose of all of the allegations of the eighth count. This appeal followed.

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

“On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ” (Internal quotation marks omitted.) Avon Meadow Condominium Assn., Inc. v. Bank of Boston Connecticut, 50 Conn. App. 688, 693, 719 A.2d 66, cert. denied, 247 Conn. 946, 723 A.2d 320 (1998). Because the trial court rendered judgment for the defendants as a matter of law, “our review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Gateway Co. v. DiNoia, 232 Conn. 223, 229, 654 A.2d 342 (1995). “On appeal, however, the burden is on the opposing patty to demonstrate that the trial court’s decision to grant the movant’s summary judgment motion was clearly erroneous.” 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn. App. 563, 567, 636 A.2d 1377 (1994).

“The essential elements of adverse possession are that the owner shall be ousted from possession and kept out uninterruptedly for fifteen years under a claim of right by an open, visible and exclusive possession of the claimant without license or consent of the owner.” (Internal quotation marks omitted.) Lazoff v. Padgett, 2 Conn. App. 246, 248, 477 A.2d 155, cert. denied, 194 Conn. 806, 482 A.2d 711 (1984); see also Lord v. Mansfield, 50 Conn. App. 21, 30-31, 717 A.2d 267, cert. denied, 247 Conn. 943, 723 A.2d 321 (1998). “ Adverse possession must be proven by the claimant ... by clear and convincing evidence. . . . Oak Leaf Marina, Inc. v. Ertel, 23 Conn. App. 91, 93, 579 A.2d 568, cert. denied, 216 Conn. 827, 582 A.2d 206 (1990).’ ” Goodrich v. Diodato, 48 Conn. App. 436, 442, 710 A.2d 818 (1998).

The plaintiffs first claim that the motion for summary judgment was improperly granted because an issue of fact exists as to when the fence was built. In support of their claim, the plaintiffs rely on the deposition testimony of Jacqueline Edel and John Edel indicating that the fence was built in 1978. Because this testimony contradicts statements of Hall in his affidavit that the fence was built after Hall moved to his property in 1983, the plaintiffs claim that summary judgment was improperly granted. We are not persuaded.

In its memorandum of decision, the trial court stated that “[c]learly, the time when the fence was built, while in dispute, is not a material fact upon which summary judgment should be denied. Whether the fence was built in 1978 or 1983 is immaterial, as either date falls before 1985, when Hall is alleged to have moved out of 2250 North Street. Since Hall consented to whatever use the Edels made of the disputed property until he moved from 2250 North Street on January 4,1985 . . . January 5, 1985, would be the first day from which adverse possession would run. As January 5, 1985, is less than the required fifteen years from April 23, 1996, [the date the plaintiffs purchased 2228 North Street] the plaintiffs’ claim of adverse possession in count eight of the complaint must fail.”

Summary judgment is properly granted when there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Practice Book § 17-49. “A ‘material fact’ is a fact that will make a difference in the result of the case.” Harvey v. Boehringer Ingelheim Corp., 52 Conn. App. 1, 4, 724 A.2d 1143 (1999). Although the date the fence was built is disputed, the question remains as to whether the fact is material. The Edels’ testimony and Hall’s affidavit establish that the fence was built with Hail’s consent and that the Edels used the disputed property with Hall’s permission. Because Hall’s land was used with his permission, the use was not adverse to Hall’s title. Thus, regardless of whether the fence was built in 1978 or 1983, the plaintiffs failed to show an essential element of their adverse possession claim, namely, that the disputed property was used without the consent of the owner. Accordingly, because the issue of when the fence was built would make no difference in the result of the case, the trial court properly concluded that it is not a material fact for purposes of summary judgment.

The plaintiffs next claim that an issue of fact exists as to whether the fence was erected with Hall’s consent. The plaintiffs claim that “[b]y virtue of the fact that there are conflicting claims as to when the fence was erected, consent is an issue.” We disagree.

The trial court stated that “[i]t is unclear how the date of the erection of the fence affects whether Hall consented to the Edels’ use of a portion of 2250 North Street, and no further explanation is given by the plaintiffs. The date of the erection of the fence has no bearing on the issue of whether Hall gave the Edels consent to use the property, which is clearly evidenced by Hall’s own affidavit at paragraph four, where Hall states: ‘Thereafter, the Edels, with my knowledge and permission, erected a fence on my portion of the property y yy

The evidence relied on by the plaintiffs fails to recite specific facts that contradict those in Hall’s affidavit and fails to show that there is a genuine issue for trial. Nowhere in the Edels’ deposition testimony do they claim that the fence was erected without Hall’s consent. In fact, the transcript is replete with statements by the Edels evidencing that, regardless of when the fence was built, it was done with Hall’s consent. For example, the Edels testified that Hall told them to put the fence anywhere because he did not care where it was built, that Hall was “delighted” that the fence was there and that he “encouraged” them to build it. Hall’s affidavit is also consistent with the Edels’ testimony regarding the reasons for the fence. While we recognize there may be circumstances where the issue of consent may involve a factual question implicating intent and state of mind that may not be properly resolved on a motion for summary judgment, “if the evidence presented by the moving party is sufficient to establish that judgment is warranted as a matter of law, it is not rebutted by the bald statement that an issue of fact does exist.” Connecticut Housing Finance Authority v. John Fitch Court Associates Ltd. Partnership, 49 Conn. App. 142, 146, 713 A.2d 900, cert. denied, 247 Conn. 908, 719 A.2d 901 (1998). Accordingly, the plaintiffs’ claim must fail.

The plaintiffs also claim that a factual issue concerning Hall’s consent exists because Hall was unaware of the exact location of the fence and, therefore, “if no measurements were taken he could not have known how much he consented to” and that “[f]or all he knew, he may have thought he was consenting to one foot and, based on that belief, he may have readily acquiesced to the building of the fence.” Basically, the plaintiffs claim that Hall may have consented to their use of only a portion of the 9941 square foot disputed area, thereby rendering the use of the remaining area adverse. This claim is equally unavailing. The trial court found that “[e]ven if Hall did not know the exact location of the fence before it was built, it is clear that there is no genuine issue of material fact as to his consent to the use of the property in question.” This finding is supported by Hall’s affidavit and the Edels’ testimony, and we will not disturb it. Furthermore, “a party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.” (Internal quotation marks omitted.) Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn. App. 582, 591, 715 A.2d 807 (1998). The plaintiffs have failed to present any evidence to support their claim that a genuine issue concerning Hall’s consent exists that precludes summary judgment.

The plaintiffs’ final claim is that the erection of the fence and the continuous use of the disputed property by them and their predecessors indicate adverse use and, therefore, summary judgment was improper. The defendants counter that the plaintiffs have failed to present facts demonstrating that the Edels’ erection of the fence and use of the disputed property constituted hostile possession or evidenced an intent to disseize Hall of his property. We agree with the defendants.

Here, the trial court found that “no facts have been presented which demonstrate that the Edels, by erecting the fence, thereby began hostile possession of Hall’s land that lay behind the fence. . . . Moreover, the Edels have testified that while they used the property on their side of the fence as their own, they knew Hall owned it. . . . This would dispel the contention that the Edels intended to disseize Hall of this property by fencing it off and occupying it for the statutory period in an open, exclusive, and continuous manner.” “[T]he possession of one who recognizes or admits title in another, either by declaration or conduct, is not adverse to the title of such other. . . . Occupation must not only be hostile in its inception, but it must continue hostile, and at all times during the required period of fifteen years challenge the right of the true owner, in order to found title by adverse use upon it. . . . Such an acknowledgment of the owner’s title terminates the running of the statutory period, and any subsequent adverse use starts the clock anew.” (Citation omitted; internal quotation marks omitted.) Lazoff v. Padgett, supra, 2 Conn. App. 250.

The trial court properly determined that there was no genuine issue of material fact and that the defendants were entitled to judgment as a matter of law.

The judgment is affirmed.

In this opinion the other judges concurred.

       Other defendants are not involved in count eight, which seeks relief against Robert Scanlon and Theresa Stetson-Scanlon only. All references to the defendants in this opinion are to Robert Scanlon and Theresa Stetson-Scanlon.

       Before the appeal, the plaintiffs moved the trial court, pursuant to Practice Book § 61-4 (a), to make a written determination that the issues resolved by the summary judgment were of such significance to the determination of the outcome of the ease that the delay incident to the appeal would be justified. The trial court granted the motion and, subsequently, the chief judge of this court concurred. The summary judgment for the defendants is, therefore, an appealable final judgment. Practice Book § 61-4.

         The plaintiffs claimed in their motion to reargue that the summary judgment did not dispose of all of their claims in the eighth count of their complaint and they sought to correct the record to reflect this. According to the plaintiffs, paragraphs one through four of the eighth count alleged a claim of adverse possession to the 9941 square foot area in question and paragraph five alleged a boundary dispute as to another portion of the plaintiffs’ property. The plaintiffs claimed that all of the evidence submitted by the defendants in support of their motion for summary judgment concerned the 9941 square foot disputed area, and that the trial court’s decision granting summary judgment dealt with this claim alone. In an order dated October 6, 1997, the trial court clarified its July 25, 1997 decision granting summary judgment to reflect that the judgment did not dispose of the allegations in paragraph five of the eighth count. The parties do not challenge this decision on appeal.
      The issues raised in the defendants’ counterclaim relating to damages for trespass and unjust enrichment also were not decided by the granting of the defendants’ motion for summary judgment.

       See footnote 2.

       “The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. . . . Doty v. Mucci, 238 Conn. 800, 805-806, 679 A.2d 945 (1996). . . . Hertz Corp. v. Federal Ins. Co., 245 Conn. 374, 380-81, 713 A.2d 820 (1998)." (Internal quotation marks omitted.) Tarzia v. Great Atlantic & Pacific Tea Co., supra, 52 Conn. App. 145.