author: MIHALAKOS, J.

text:
    STATE OF CONNECTICUT v. JASON A. GORISS
    (AC 26963)
    Bishop, DiPentima and Mihalakos, Js.

      Argued November 26, 2007
    officially released June 10, 2008

      Mary Boehlert, special public defender, for the appellant (defendant).

      Nancy L. Chupak, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Mary Elizabeth Baran, senior assistant state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, Jason A. Goriss, appeals from the judgment of conviction, rendered after a jury trial, of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). He was acquitted of the charge of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2). On appeal, the defendant claims that the trial court (1) improperly denied his motion for a judgment of acquittal notwithstanding the verdict and (2) improperly denied his motion to allow him to testify as a surrebuttal witness. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On one evening in January, 2004, the victim, T, who was nine years old at the time, was in the apartment of her half-sister, D. Also present in the apartment were D’s husband, who is the defendant in this case, and D’s two younger children. After watching a scary movie, T had fallen asleep on the couch. Upon awakening, she went into the kitchen, where the defendant was sitting at the computer. She told the defendant she was scared, and he asked her if she wanted to he down on the sofa with him. While they were lying down on the couch, the defendant started to tickle her and then placed his hand down her pajama bottoms and touched her vagina. T did not tell anyone about the incident for several months because she did not want to go to court and testify.

Sometime in April, 2004, T told her eleven year old sister that the defendant had touched her inappropriately, whereupon the eleven year old sister called D and told her what had happened. D then called T’s father and also notified the department of children and families (department). The department, in turn, notified the Wallingford police department.

T was examined by Janet Murphy, a nurse practitioner at the Yale-New Haven Hospital child sexual abuse evaluation clinic. When Murphy asked T about where the defendant had touched her, T replied that the defendant had put his finger more inside of her than on the outside of her vagina.

I

The defendant first claims on appeal that the court improperly denied his motion for a judgment of acquittal notwithstanding the verdict because the jury’s conclusion was not reasonably and logically reached. Specifically, the defendant contends that in light of the testimony and evidence presented at trial, the guilty verdict on the risk of injury charge was illogical given the not guilty verdict on the charge of sexual assault in the first degree. He contends that digital penetration constitutes sexual intercourse and that because the jury found him not guilty on the charge requiring intercourse, it had to find that there was no digital penetration. Because there was no digital penetration of a child younger than age sixteen, a conviction could not be had under § 53-21 (a) (2). We do not agree.

It is well recognized that in criminal trials before a jury, “[t]he general rule to which we subscribe is that factual [consistency in the verdict is not necessary. Each count in an indictment is regarded as if it [were] a separate indictment.” (Internal quotation marks omitted.) State v. Hinton, 227 Conn. 301, 313, 630 A.2d 593 (1993). “[A] factually inconsistent verdict will not be overturned on appeal. On several occasions, this court has refused to reverse a verdict of guilty on one count where that verdict appeared to be inconsistent with a verdict of acquittal on another count. . . . The law permits inconsistent verdicts because of the recognition that jury deliberations necessarily involve negotiation and compromise. . . . [IJnconsistency of the verdicts is immaterial. ... As Justice Holmes long ago observed in the case of Dunn v. United States, 284 U.S. 390, 393-94, 52 S. Ct. 189, 76 L. Ed. 356 (1932): The most that can be said in such cases ... is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant’s guilt. We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity. . . . That the verdict may have been the result of compromise, or a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters.” (Internal quotation marks omitted.) State v. DeCaro, 252 Conn. 229, 242-43, 745 A.2d 800 (2000).

The defendant does not appear to claim that the guilty verdict of the jury should be vacated because it was factually inconsistent with its not guilty verdict. Rather, the defendant claims that the jury’s verdict, finding him guilty of risk of injury to a child, logically cannot be reconciled with the verdict finding him not guilty of sexual assault in the first degree. “While an inconsistent verdict is not objectionable in itself, its inconsistency may be considered insofar as it supports a claim that the jury’s conclusion was not reasonably and logically reached.” State v. Manning, 162 Conn. 112, 123, 291 A.2d 750 (1971); see State v. DeCaro, supra, 252 Conn. 243. “The resolution of a claim of inconsistent verdicts presents a question of law. . . . Our review is therefore plenary.” (Citation omitted.) State v. Flowers, 85 Conn. App. 681, 694, 858 A.2d 827 (2004), rev’d on other grounds, 278 Conn. 533, 898 A.2d 789 (2006).

The defendant contends that “the effect of the not guilty verdict on the sexual assault in the first degree [charge] logically means the jury found that no molestation occurred. As there [was] no evidence that a sexual touching took place apart from, either before or after, the alleged digital penetration, it is impossible to reasonably or logically find a digital touching but no digital penetration.” The defendant’s argument lacks a legal and factual basis.

Sexual assault in the first degree under § 53a-70 (a) (2) requires that sexual intercourse occur. Sexual intercourse is defined in General Statutes § 53a-65 (2) and requires penetration of the victim’s vagina. Unlike the penetration required for sexual assault in the first degree, mere contact with the intimate parts of the victim is all that is required under § 53-21 (a) (2)—it does not require penetration at all. To reach its verdict, the jury needed to find that the defendant had contact with T’s intimate parts. Furthermore, “[i]t is the jury’s right to accept some, none or all of the evidence presented. . . . [The jury] is free to juxtapose conflicting versions of events and determine which is more credible. ... It is the [jury’s] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses. . . . The [jury] can . . . decide what— all, none, or some—of a witness’ testimony to accept or reject.” (Internal quotation marks omitted.) State v. Weisenberg, 79 Conn. App. 657, 663-64, 830 A.2d 795, cert. denied, 266 Conn. 932, 837 A.2d 806 (2003).

Most of the testimony at trial centered around the issue of digital penetration. Murphy testified that during her physical examination of T, she placed her hands on the outside of T’s genitalia and that T told her that the defendant had put his finger more inside than where her hands were. Murphy further testified that “it’s hard to know exactly what inside to her meant, more inside than where my hands were, but my hands were on the very—my hands were on the verge of the inside. . . . All I know is she meant more inside than where my hands were and . . . the next step would have been inside because [my hands] were on the outside.” The testimony of Murphy could have raised a reasonable doubt in the minds of the jurors as to whether digital penetration had in fact occurred, thereby leading to the defendant’s acquittal on the charge of sexual assault in the first degree.

Although Murphy’s testimony could have created reasonable doubt regarding penetration, her testimony also permitted the jury reasonably to conclude that the defendant touched T’s vagina regardless of whether penetration was achieved. As noted, the jury, as the sole finder of fact, is free to believe all, none or some of a witness’ testimony. On this basis, the jury’s verdict was not illogical.

Furthermore, the jury’s verdict could have been based on compromise. See State v. DeCaro, supra, 252 Conn. 242-43 (“[t]he law permits inconsistent verdicts because of the recognition that jury deliberations necessarily involve negotiation and compromise” [internal quotation marks omitted]). The jury’s guilty verdict on one charge and not guilty verdict on another can be interpreted as an act of leniency toward the defendant in regard to the not guilty verdict. We, however, are not permitted to speculate as to why the jury reached its verdict. The jury had before it facts from which to find that the prohibited contact had occurred. Accordingly, the court correctly denied the defendant’s motion for a judgment of acquittal notwithstanding the verdict.

II

The second and final claim by the defendant is that the court abused its discretion when it denied his motion to permit him to testify as a surrebuttal witness. Specifically, the defendant claims that he should have been permitted to rebut the rebuttal testimony of Detective Linda LoPresto. We are not persuaded.

The following additional facts are pertinent to the defendant’s claim. The state, as part of its case-in-chief, presented LoPresto as one of its witnesses. She testified that she had interviewed the defendant on April 24, 2004. No further testimony was elicited from LoPresto regarding the substance of the interview. After the state had rested its case, the defendant testified on direct examination that he had never had sexual relations with T. On cross-examination, he was asked if he had told LoPresto that he had laid on the sofa with T, rubbed her back and may have mistakenly touched her private area. He denied ever making such a statement.

On rebuttal, the state again called LoPresto, who testified that when she interviewed the defendant, he had in fact told her that he laid down on the sofa with the victim and may have touched her private area by mistake.

The defendant thereafter moved for permission to testify as a surrebuttal witness in light of LoPresto’s rebuttal testimony. The court, in denying the defendant’s motion, stated that the defendant had the opportunity on redirect to give his version of what happened and failed to do so. Furthermore, the court reasoned, no new matter had been raised by the rebuttal witness.

Having reviewed the facts relevant to the defendant’s claim, we now set forth our standard of review. “Rebuttal evidence is that which is offered to meet new matters raised in [a defendant’s case], to contradict prior testimony and to impeach or rehabilitate witnesses .... Surrebuttal evidence is that which is offered to meet evidence raised in rebuttal. [0]nly evidence to explain away new facts brought forward by the proponent in rebuttal ... is properly admissible [in surrebuttal]. . . . [Our Supreme Court previously has] stated that there is no constitutional right to present surrebuttal evidence. . . . The presentation of surrebuttal evidence is a matter resting squarely within the discretion of the trial court. . . . The defendant must demonstrate some compelling circumstance and the proffered evidence must be of such importance that its omission puts in doubt the achievement of a just result.” (Internal quotation marks omitted.) State v. Boykin, 74 Conn. App. 679, 691-92, 813 A.2d 143, cert. denied, 263 Conn. 901, 819 A.2d 837 (2003).

In the present case, the record reflects that the prosecutor cross-examined the defendant about what he had said to LoPresto and, specifically, whether he had stated that he might have mistakenly touched T’s private area when he picked T up. The defendant testified that he did not make such a statement to LoPresto. The defendant’s attorney had a full opportunity, during redirect examination, to clarify the defendant’s prior testimony, if he so desired. No such clarification was sought on redirect. The state then called LoPresto as a rebuttal witness. LoPresto testified that the defendant did, in fact, make a statement that he had lain down on the sofa with the victim and may have touched T’s private area by mistake. The court permitted the prosecutor to elicit LoPresto’s rebuttal testimony to contradict, or to rebut, the defendant’s testimony that he did not make such a statement to LoPresto. The defendant thereafter sought surrebuttal to rebut LoPresto’s testimony.

Under the principles previously set forth, the defendant was permitted, by means of surrebuttal, only to explain away new facts set forth by the state in its rebuttal. His proffered evidence did not satisfy that standard; he did not seek to contradict or to rebut the statements made by LoPresto but, rather, to clarify his prior testimony in light of LoPresto’s testimony. The defendant does not refer to anything in his proffered evidence that would have refuted the facts elicited by the state’s rebuttal testimony. Instead, the defendant sought to testify as to what transpired during his interview with LoPresto, a topic that was well covered in his earlier testimony, and, apparently, to strengthen the credibility of that testimony.

“Bolstering of defense evidence is not permitted on surrebuttal.” (Internal quotation marks omitted.) Id., 693. The proffered testimony would not have rebutted or refuted evidence elicited by the state on rebuttal. Instead, it appears that the defendant offered his testimony merely to rehabilitate or to clarify his prior testimony because he disagreed with LoPresto’s testimony. Likewise, the defendant has not demonstrated that compelling circumstances existed for the admission of his proffered testimony or that the omission of such evidence casts doubt on the propriety of the jury’s verdict. For these reasons, we conclude that the court properly exercised its discretion when it declined to admit such testimony on surrebuttal.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53-21 (a) provides in relevant part: “Any person who ... (2) has contact with the intimate parts, as defined in 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child . . . shall be guilty of ... a class B felony . . . .”

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person . . . (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person . . . .”

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

       General Statutes § 53a-65 (2) provides: “ ‘Sexual intercourse’ means vaginal intercourse, anal intercourse, fellatio or cunnilingus between persons regardless of sex. Its meaning is limited to persons not married to each other. Penetration, however slight, is sufficient to complete vaginal intercourse, anal intercourse or fellatio and does not require emission of semen. Penetration may be committed by an object manipulated by the actor into the genital or anal opening of the victim’s body.”

       The prosecutor asked the defendant: “Isn’t it true, sir, yes or no, that on April 23 of the year 2004 that you said to Detective Linda LoPresto the following: ‘You do remember an evening when [T] slept over and she was on the couch, that she woke up scared and that you did comfort her, and then you said that you lied down on the couch with her and you had [T] lie on your stomach, and that you also told Detective LoPresto that you rubbed her back and that [T] might have misconstrued your affection and that you also told the detective that you might have mistakenly touched her private part when you picked her up.’ Do you remember, sir, under oath today in this courtroom telling that to Detective Linda LoPresto . . . yes or no?” The defendant responded: “No.”


source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    MICHAEL IACURCI v. SCOTT WELLS ET AL.
    (AC 28434)
    DiPentima, McLachlan and Gruendel, Js.
    Argued February 20
    officially released June 10, 2008

      Christopher R. Perry, for the appellants (defendants).

      Michael Iacurci, pro se, the appellee (plaintiff).
   Opinion

GRUENDEL, J.

This case arises out of a landlord-tenant dispute. The defendants, Scott Wells and Dottie Wells, appeal from the judgment of possession rendered by the trial court in favor of the plaintiff, Michael Iacurci. The defendants claim on appeal that the court (1) lacked jurisdiction to hear the case, (2) improperly found that the lease was valid and (3) improperly found that the certificate of occupancy was valid. We dismiss the appeal as moot.

On October 24, 2005, the defendants entered into a lease with Spencer Classic Homes, LLC, for a property located at 4 Benjamin Lane in East Haddam (leased property). The plaintiff subsequently purchased the property from Spencer Classic Homes, LLC, on February 28, 2006, subject to the defendants’ lease. The lease provided: “Beginning on the [commencement [d]ate and continuing thereafter to the end of the term of this lease, [t]enant shall pay rent to [l]andlord in the amount of [z]ero [d]ollars ($0.00) per month . . . .” The lease further provided: “In the event that the [t]enant does not vacate the premises upon the date that the [certificate of [o]ccupancy is issued for # 9 Benjamin Lane, East Haddam, Connecticut, then [tjenant shall pay rent to the [l]andlord in the amount of [tjhree [tjhousand [f]ive [h]undred [d]ollars ($3,500.00) per month . . . without demand counterclaim abatement, deduction [or] setoff.” Scott Wells testified that he and Dottie Wells had entered into a contract with New House Resource Group, LLC, to purchase 9 Benjamin Lane.

The certificate of occupancy for 9 Benjamin Lane was issued on March 2, 2006, and the defendants became aware of it sometime in the middle of March. After so learning, the defendants continued to occupy the leased property, and they made no rental payments to the plaintiff. On May 26, 2006, the plaintiff commenced a summary process action against the defendants for nonpayment of rent. On July 14, 2006, the plaintiff filed a motion for use and occupancy payments, which was granted by the court. After a trial to the court, the court found that the defendants had failed to make rental payments, in accordance with the lease, after the certificate of occupancy had issued for 9 Benjamin Lane. The court, therefore, rendered judgment of possession in favor of the plaintiff. This appeal followed. While this appeal was pending, on April 18, 2007, the defendants relinquished possession of the leased property, returning possession to the plaintiff.

Before we can reach the merits of the defendants’ appeal, we first must determine whether the case has been rendered moot because the defendants are no longer in possession of the leased property. “Mootness is a threshold issue that implicates subject matter jurisdiction, which imposes a duty on the court to dismiss a case if the court can no longer grant practical relief to the parties. . . . 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. . . . [T]he existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” (Internal quotation marks omitted.) Wilcox v. Ferraina, 100 Conn. App. 541, 547-48, 920 A.2d 316 (2007). “We have consistently held that an appeal from a summary process judgment becomes moot where, at the time of the appeal, the defendant is no longer in possession of the premises.” (Internal quotation marks omitted.) Cheshire v. Lewis, 75 Conn. App. 892, 893, 817 A.2d 1277, cert. denied, 264 Conn. 905, 826 A.2d 177 (2003). “Our Supreme Court, however, has allowed us to retain jurisdiction where the matter being appealed creates collateral consequences prejudicial to the interests of the appellant, even though developments during the pendency of the appeal would otherwise render it moot.” (Internal quotation marks omitted.) Wilcox v. Ferraina, supra, 548.

“[T]o invoke successfully the collateral consequences doctrine, the litigant must show that there is a reasonable possibility that prejudicial collateral consequences will occur. Accordingly, the litigant must establish these consequences by more than mere conjecture, but need not demonstrate that these consequences are more probable than not. This standard provides the necessary limitations on justiciability underlying the mootness doctrine itself. Whe[n] there is no direct practical relief available from the reversal of the judgment . . . the collateral consequences doctrine acts as a surrogate, calling for a determination whether a decision in the case can afford the litigant some practical relief in the future.” (Internal quotation marks omitted.) Smith-Lawler v. Lawler, 97 Conn. App. 376, 380, 904 A.2d 1235 (2006).

The defendants raise three possible adverse collateral consequences that they claim require review of their otherwise moot appeal. First, the defendants point out that they have initiated a separate action that they claim will challenge many of the issues litigated before the court in the summary process action. They claim that in rendering its judgment of possession of the leased property in favor of the plaintiff, the court necessarily made certain findings and that the defendants will be collaterally estopped from litigating these issues in the separate, pending action. In addition, the defendants claim that there will be prejudicial consequences to their reputation in the community and to Scott Wells’ maintenance of his gaming license for employment. We consider each claimed collateral consequence.

I

COLLATERAL ESTOPPEL

The defendants have initiated a separate action involving issues that pertain to both the leased property as well as the property they allegedly contracted to purchase at 9 Benjamin Lane. The plaintiff, along with New House Resource Group, LLC, and Spencer Classic Homes, LLC, are defendants in that pending action. In that action, the defendants in this case are seeking to have their security deposit returned and are claiming violations of certain home improvement contractor statutes, as well as violations of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. See Wells v. New House Resource Group, LLC, Superior Court, judicial district of Middlesex, Docket No. CV-06-5000789-S. Additionally, the defendants claim that the amount of rent, if any, due to the plaintiff will also be an issue in the pending action. The defendants argue that in rendering judgment of possession in favor of the plaintiff, the court necessarily had to find that (1) a valid and enforceable lease was entered into by the parties, (2) the relationship between the lease and the purchase and sale contract for 9 Benjamin Lane had no effect on the lease, and (3) a valid and enforceable certificate of occupancy was issued for 9 Benjamin Lane. The defendants claim that these issues were presented to, and decided by, the court and are key issues that will be litigated in the pending action. Further, they claim that if this appeal is deemed moot, they will be bound by what they believe are incorrect determinations made by the court. The plaintiff agrees that the issues were presented to the court but argues that the court determined only the question of who should be in possession of the property without necessarily determining the validity of the lease or the certificate of occupancy and what relationship, if any, existed between the lease and the alleged purchase and sale contract for 9 Benjamin Lane.

“Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim. . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment.” (Internal quotation marks omitted.) Alexandru v. Strong, 81 Conn. App. 68, 76, 837 A.2d 875, cert. denied, 268 Conn. 906, 845 A.2d 406 (2004). “An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined. ... 1 Restatement (Second), Judgments § 27, comment (d) (1982). An issue is necessarily determined if, in the absence of a deteimination of the issue, the judgment could not have been validly rendered.” (Internal quotation marks omitted.) Powell v. Infinity Ins. Co., 282 Conn. 594, 600-601, 922 A.2d 1073 (2007).

In the present case, in deciding that possession of the leased property should be awarded to the plaintiff, the court found the lease to be clear and unambiguous. The court construed various terms of the lease and concluded that the defendants would live rent free at 4 Benjamin Lane until the certificate of occupancy issued for 9 Benjamin Lane. Further, if the defendants remained at 4 Benjamin Lane after the date the certificate of occupancy was issued for 9 Benjamin Lane, the defendants were obligated to pay rent in the amount of $3500 per month. The court found that the defendants neither vacated the property at 4 Benjamin Lane when the certificate of occupancy for 9 Benjamin Lane was issued, nor began paying the monthly rental fee for 4 Benjamin Lane. The court, therefore, found in favor of the plaintiff and granted him possession of the leased property. Because the court construed several provisions of the lease to determine that possession should be awarded to the plaintiff, we agree with the defendants that the court necessarily determined that the lease was valid. We disagree, however, with the defendants’ argument that the court also necessarily determined the validity of the certificate of occupancy and the relationship, if any, between the lease and the alleged purchase and sale contract. Indeed, the court so indicated in its memorandum of decision.

Next, we must determine what effect, if any, the court’s determination that the lease was valid has on the collateral consequences doctrine. We conclude that although the court found the lease to be valid for purposes of summary process, the defendants will not be collaterally estopped from relitigating that issue in the subsequent, pending action. In Commissioner of Motor Vehicles v. DeMilo & Co., 233 Conn. 254, 268-69, 659 A.2d 148 (1995), our Supreme Court adopted § 28 (1) of 1 Restatement (Second), Judgments (1982). Section twenty-eight provides in relevant part: “Although an issue is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, relitigation of the issue in a subsequent action between the parties is not precluded in the following circumstances: (1) [t]he party against whom preclusion is sought could not, as a matter of law, have obtained review of the judgment in the initial action . . . .” “Such cases can arise, for example, because the controversy has become moot .... Id., § 28, comment (a).” (Internal quotation marks omitted.) Commissioner of Motor Vehicles v. DeMilo & Co., supra, 268. In Commissioner of Motor Vehicles, the court concluded that because the defendant’s appeal from the judgment was deemed moot, the defendant was unable to obtain review as a matter of law. As such, § 28 (1) applied so as not to bar the defendant from relitigating the factual and legal issues decided in rendering that judgment. Following our Supreme Court’s logic in that case, we conclude that if the present appeal is deemed moot, the defendants will not be barred from relitigating the issue of the validity of the lease in a subsequent action, precisely because, as a matter of law, the defendants were unable to obtain review of the judgment. As such, the defendants’ argument that if we determine that the appeal is moot they will be collaterally estopped from relitigating the issue of the validity of the lease fails.

II

REPUTATION IN THE COMMUNITY

The defendants claim that their reputation in the community has been and will be adversely affected by the eviction judgment rendered against them. For this proposition, the defendants rely on State v. McElveen, 261 Conn. 198, 215-16, 802 A.2d 74 (2002), in which our Supreme Court deemed not moot the appeal from the trial court’s revocation of the defendant’s probation and order that he serve six months in prison even though he had served all of his jail time. The court reasoned that there were collateral consequences that reasonably could ensue as a consequence of a probation revocation, such as a negative impact on a defendant’s standing in the community and the ability to secure employment. Here, the defendants have failed to show how a summary process eviction, in and of itself, damages a person’s reputation in the community at all, much less that it rises to the level such that we would be inclined to recognize it as a collateral consequence that would allow this court to review an otherwise moot appeal. Contra Putman v. Kennedy, 279 Conn. 162, 900 A.2d 1256 (2006) (defendant’s otherwise moot appeal of expired domestic violence restraining order reviewable because of its reasonably possible negative impact on reputation in community); Williams v. Ragaglia, 261 Conn. 219, 802 A.2d 778 (2002) (enbanc) (foster parent’s otherwise moot appeal regarding revocation of foster care license deemed reviewable due in part to possibility that revocation information would be disseminated through government agencies creating reasonable possibility of negative impact on reputation as foster parent); Statewide Grievance Committee v. Whitney, 227 Conn. 829, 633 A.2d 296 (1993) (attorney’s otherwise moot appeal of expired suspension reviewable because of collateral consequences to attorney’s reputation). Accordingly, we reject the defendants’ argument.

Ill

DISCLOSURE OF JUDGMENTS

Scott Wells is an attorney for the Mohegan Sun Casino and claims that as an employee, he is required to maintain a gaming industry license. The defendants claim that his gaming license will be affected adversely by the summary process judgment because he is required to disclose all judgments against him in accordance with certain gaming license requirements. The defendants do not, however, explain how his license adversely will be affected. Without more, we are unable to determine, without speculating, whether there is a reasonable possibility that prejudicial collateral consequences will occur. See Smith-Lawler v. Lawler, supra, 97 Conn. App. 380. Because this court will not speculate on what is not in the record, we decline to review this claim. See State v. Hermann, 38 Conn. App. 56, 68, 658 A.2d 148, cert. denied, 235 Conn. 903, 665 A.2d 904 (1995).

We conclude that the defendants have failed to bring to our attention any adverse collateral consequences that will befall them, and, therefore, we cannot afford them any practical relief. The appeal is moot.

The appeal is dismissed.

In this opinion the other judges concurred.

       We note that the court was never presented with the purchase and sale contract for 9 Benjamin Lane and heard only oral testimony about the existence of the contract and its purported relationship with the lease.

       In Ms brief, the plaintiff contends that tMs appeal is moot. The defendants counter that even though they no longer retain possession of the leased property, tMs court still should review the merits of their appeal because the matter creates collateral consequences prejudicial to their interests.

       We note that the defendants did not file a motion for articulation concerning any of the court’s findings or conclusions.

       In its memorandum of decision, the court stated: “The issues that the defendants have raised regarding agreements with the builder are matters which must be addressed in another court. This is an action for summary process, based on nonpayment of rent at 4 Benjamin Lane.” In addition, during the trial, in response to the defendants’ presentation of testimony regarding the validity of the certificate of occupancy, the court stated: “I’m not going to decide the validity of the certificate of occupancy in this action.”

       The defendants submitted an affidavit to this court in which Scott Wells attested to the fact that as part of maintaining his gaming license, he is required to disclose any and all judgments against him. That attestation is merely a restatement of the argument made in the defendants’ brief and does not provide this court any more information than what is already in the record.


author: FLYNN, C. J.

text:
    MICHAEL A. SANDERS v. JOSE C. DIAS ET AL.
    (AC 28487)
    Flynn, C. X, and Robinson and Pellegrino, Js.

      Argued March 12
    officially released June 10, 2008

      William C. Bieluch, Jr., for the appellant (plaintiff).

      Joshua A. Winnick, for the appellees (defendants).
   Opinion

FLYNN, C. J.

The plaintiff, Michael A. Sanders, appeals from the judgment of the trial court in favor of the defendants, Jose C. Dias and Lisa M. Murray, in which the court concluded that the defendants had an easement by implication over a portion of the plaintiff s driveway. On appeal, the plaintiff claims that the court improperly (1) rendered judgment on the basis of a theory that was not pleaded in the defendants’ counterclaim, (2) applied the law regarding easements by implication, and (3) granted an overbroad and undefined easement to the defendants. We affirm the judgment of the trial court as to the grant of the easement by implication but remand the case for further proceedings to determine the precise scope and location of that easement.

The court found the following facts, which are not contested. “The lots which the parties own were parts of a subdivision developed by Mario Demelis of Middle-town .... The subdivision is described in a final subdivision map . . . recorded in the Killingworth land records on April 4, 1972. The subdivision declarations of restrictions and covenants running with the land were filed on August 7, 1975. . . . The subdivision documents and the parties’ deeds ... do not reference an easement or right-of-way in favor of the defendants over the plaintiffs property.

“The defendants’ property was developed first by the developer and sold to the defendants’ predecessor in title in 1976. The plaintiffs lot and home [were] subsequently developed and sold to the plaintiffs predecessor in title in 1977. . . . The defendants and their predecessors in title have used the front portion of the driveway located on the plaintiffs property since 1976.

“The subdivision map shows that the driveway for the defendants’ lot should be on an area adjacent to lot 10 accessing Quarry Hill Road. The plaintiffs property is essentially situated behind the defendants’ lot but with a lengthy [twenty-five] foot wide strip connecting the lot to Quarry Hill Road. The plaintiffs driveway is approximately 600 feet in length. The plaintiff, after purchasing the property in 2003, learned that it appeared that the defendants were encroaching on his property with respect to the use of the portion of his driveway adjacent to Quarry Hill Road. The defendants’ driveway encompasses a small portion of the plaintiffs driveway near Quarry Hill Road and then veers off toward the defendants’ house.” (Citations omitted.)

On May 3, 2005, the plaintiff filed an action for trespass, seeking to enjoin the defendants from continued use of his property. The defendants, in turn, filed a counterclaim seeking a declaratory judgment as to whether they have a right-of-way over the plaintiffs land and the exact location of that right-of-way. After a trial to the court, the court rendered judgment for the defendants on the plaintiffs complaint and for the defendants on their counterclaim, recognizing a right-of-way in favor of the defendants “over the driveway apron located on the plaintiffs property. This right-of-way measures approximately ten feet wide by twenty feet long.” This appeal followed.

I

The plaintiffs first claim appears to allege that the court improperly found an easement by implication where the defendants in their counterclaim pleaded only a right-of-way by necessity. He also argues that the defendant did not plead or prove “the existence of a prescriptive easement and therefore none should [have] been found by the trial court.” The plaintiff contends that the defendants are bound by their pleadings and that the court improperly rendered judgment for the defendants on the basis of a theojy that was not pleaded in their counterclaim. We conclude that this claim lacks merit.

“Once the pleadings have been filed, the evidence proffered must be relevant to the issues raised therein. ... A judgment upon an issue not pleaded would not merely be erroneous, but it would be void.” (Internal quotation marks omitted.) Kelley v. Tomas, 66 Conn. App. 146, 160-61, 783 A.2d 1226 (2001).

The plaintiff relies on the case of O’Brien v. Coburn, 39 Conn. App. 143, 664 A.2d 312 (1995), to support his argument. In O’Brien, this court reversed the judgment of the trial court, which had found an easement by implication where the plaintiffs had pleaded the elements necessary for a prescriptive easement and not for an implied easement. Id., 148-49. Explaining the elements necessary to prove a prescriptive easement, we stated: “With regard to a prescriptive easement, General Statutes § 47-37 provides: ‘No person may acquire a right-of-way or any other easement from, in, upon or over the land of another, by the adverse use or enjoyment thereof, unless the use has been continued uninterrupted for fifteen years.’ In Connecticut, therefore, a prescriptive easement is established by proving an open, visible, continuous and uninterrupted use for fifteen years made under a claim of right.” (Internal quotation marks omitted.) O’Brien v. Coburn, supra, 148.

We further explained that “[a]n implied easement is typically found when land in one ownership is divided into separately owned parts by a conveyance, and at the time of the conveyance a permanent servitude exists as to one part of the property in favor of another which servitude is reasonably necessary for the fair enjoyment of the latter property. ... In the absence of common ownership ... an easement by implication may arise based on the actions of adjoining property owners. . . . There are two principal factors to be examined in determining whether an easement by implication has arisen: (1) the intention of the parties; and (2) whether the easement is reasonably necessary for the use and normal enjoyment of the dominant estate.” (Internal quotation marks omitted.) Id.

Although the plaintiff argues the similarity between the present case and the O’Brien case, we find the two cases readily distinguishable. In O’Brien, the plaintiffs pleaded a cause of action for a prescriptive easement, claiming that they had “used the . . . driveway in an open and visible maimer continuously and uninterrupted, for a period greater than fifteen years, and engaged in such use under a claim of right.” (Internal quotation marks omitted.) Id., 148-49. We explained that the complaint specifically did not contain the allegations necessary to establish an easement by implication. Id., 149. In contrast, the defendants in the present case specifically pleaded in their special defense that they have “a right-of-way over the front portion of the plaintiffs driveway.” They further pleaded in their counterclaim that in order for them “to use and enjoy their land, it is necessary that the existence and location of their [right-of-way] over the defendant’s land and the extent of permissible use be judicially determined.”

Additionally, we note that although there exists a similarity between an easement by necessity and an easement by implication; see Kelley v. Tomas, supra, 66 Conn. App. 169 n.5; these easements are not identical: “The difference between the two types of easements is that an easement by necessity requires the party’s parcel to be landlocked, and an easement by implication does not require that the parcel be landlocked.” Id., 170 n.5. The defendants, in their counterclaim and special defenses, did not allege that their parcel was landlocked. We conclude that the allegations in the defendants’ pleadings were sufficient to alert the court and the plaintiff that the defendants were claiming an easement by implication. Accordingly, we conclude that the plaintiffs first claim is without merit.

II

The plaintiff next claims that the court improperly applied the law regarding easements by implication. Specifically, the plaintiff argues that the court improperly applied the unity of title doctrine in this case, which, he argues, the Supreme Court specifically abandoned in Bolan v. Avalon Farms Property Owners Assn., Inc., 250 Conn. 135, 144-45, 735 A.2d 798 (1999) (en banc). Without the improper application of this doctrine, the plaintiff argues, the court could not have recognized an easement in favor of the defendants. We do not agree.

Initially, we address the plaintiffs assertion that it became improper for the court to consider prior unity of title in implied easement cases after the Supreme Court’s decision in Bolán. Although the requirements to establish an easement by necessity once required a showing of unity of ownership; see Curtin v. Franchetti, 156 Conn. 387, 389, 242 A.2d 725 (1968); in Botan, our Supreme Court eliminated that requirement. See Botan v. Avalon Farms Property Owners Assn., Inc., supra, 250 Conn. 144-45. In abrogating that doctrine, however, the Supreme Court did not make it improper to consider that there once existed unity of title in easement cases. See generally Kelley v. Tomas, supra, 66 Conn. App. 169-70 n.5. Rather, it simply omitted the requirement that there be unity of title to establish an easement. Accordingly, we conclude that the court acted properly in considering that there once was unity of title in this case.

We next must decide the appropriate standard of review for a claim challenging the existence of an easement by implication. The plaintiff, in his main appellate and reply briefs, states that the appropriate standard of review is the clearly erroneous standard. During oral argument before this court, however, he argued that our review is plenary. The defendants, in their appellate brief, also contend that we should employ a plenary standard of review in this case but, during oral argument, asserted that a mixed standard of review is necessary. We acknowledge that case law on this issue is somewhat confusing. In Utay v. G.C.S. Realty, LLC, 72 Conn. App. 630, 806 A.2d 573 (2002), this court stated: “The finding of an easement by implication is a question of law. . . . Our review is, therefore, plenary.” (Citation omitted.) Id., 636. In Gemmell v. Lee, 59 Conn. App. 572, 757 A.2d 1171, cert. denied, 254 Conn. 951, 762 A.2d 901 (2000), however, we explained that “[w]e determine whether the grantor intended to establish an easement by an examination of the deeds, maps and recorded instruments introduced as evidence. Intent as expressed in deeds and other recorded documents is a matter of law. . . . [Additionally, however] [w]emust . . . examine the facts found by the court as relevant to the establishment of the particular dimensions of the easement.” (Citation omitted; internal quotation marks omitted.) Id., 576. In Perkins v. Fasig, 57 Conn. App. 71, 78-79, 747 A.2d 54, cert. denied, 253 Conn. 925, 754 A.2d 797 (2000), we explained that “[although the intent of a grantor to create an easement as expressed in deeds, maps and recorded instruments is a question of law, those documents must be considered in light of the surrounding circumstances to determine the nature and extent of the easement.” After reversing the judgment of the trial court, because we concluded as a matter of law that the defendants did have implied easements over the land of the plaintiff, we remanded the case to the trial court for further proceedings to make factual determinations as to the nature and extent of those easements. Id., 79.

Recently, our Supreme Court explained: “Although in most contexts the issue of intent is a factual question on which our scope of review is limited . . . the determination of the intent behind language in a deed, considered in the light of all the surrounding circumstances, presents a question of law on which our scope of review is plenary. . . . Nevertheless, [t]he determination of the scope of an easement is a question of fact . . . [and the] decision as to what would constitute a reasonable use of a right-of-way is for the trier of fact whose decision may not be overturned unless it is clearly erroneous.” (Citation omitted; internal quotation marks omitted.) Stefanoni v. Duncan, 282 Conn. 686, 699, 923 A.2d 737 (2007).

In the present case, it is undisputed that the deeds contain no mention of an easement or right-of-way, nor do they contain a reference to any document from which an easement might be implied; accordingly, we must look beyond the deeds to determine whether there exists an easement by implication. In considering the appropriate standard to employ in looking beyond the deeds, we find very instructive the explanation offered by the Supreme Court in Stankiewicz v. Miami Beach Assn., Inc., 191 Conn. 165, 464 A.2d 26 (1983), a case in which “[t]he issue presented [was] confined to a claim of an implied easement to roadways based upon a descriptive reference in a deed to a map [that showed those roadways].” Id., 169 n.6. The court distinguished a situation in which an easement can be inferred because of a reference contained in the deed from a situation in which a deed contains nothing from which such an inference could be drawn. The court explained that in “a situation wherein a conveyor, by deed, transfers a portion of his land and the conveyor’s prior use of the land conveyed can give rise to an implied easement in the land conveyed in favor of the land retained . . . the issue is usually a question of fact resting upon a number of considerations. See 3 Powell, Real Property § 411.” Stankiewicz v. Miami Beach Assn., Inc., supra, 169 n.6; see also D'Amato v. Weiss, 141 Conn. 713, 718, 109 A.2d 586 (1954) (“[T]he conception underlying the creation of an easement by implication is that the parties are presumed to have intended the grant of an easement. . . . This presumption, however, is one of fact, and whether a grant is to be implied in any given case depends upon the intent of the parties as ascertained from the terms of the deed and the facts of the case.” [Citation omitted.]). Accordingly, we conclude that the appropriate standard of review as to the factual determination that there exists an easement by implication in the present case is the clearly erroneous standard.

The plaintiff argues that “there was no deed, map or note indicating any intention with respect to creating an easement for access .... To the contrary, the proposed building sketch [in the record] indicates that the access to lot no. 11 was to be located at the other side of the property alongside lot no. 10 on the subdivision map ... In this case, there are no documents providing for any rights of access and therefore nothing for the court to construe as to the intention of the parties.” Although we agree that there are no documents that evince an intent by the grantor to establish an easement over a portion of the plaintiffs driveway, that is not the only manner in which an easement by implication may be established. See Stankiewicz v. Miami Beach Assn., Inc., supra, 191 Conn. 169 n.6; D'Amato v. Weiss, supra, 141 Conn. 718.

“An implied easement is typically found when land in one ownership is divided into separately owned parts by a conveyance, and at the time of the conveyance a permanent servitude exists as to one part of the property in favor of another which servitude is reasonably necessary for the fair enjoyment of the latter property. . . . We examine two principal factors in determining whether an easement by implication has arisen. . . . First, we look to the intention of the parties and, second, we consider whether the easement is reasonably necessary for the use and normal enjoyment of the dominant estate.” (Citations omitted; internal quotation marks omitted.) Martin Drive Corp. v. Thorsen, 66 Conn. App. 766, 776, 786 A.2d 484 (2001).

The court found that both the plaintiffs and the defendants’ lots had been owned and developed by Demelis as part of a subdivision. The defendants’ lot was developed first and sold to the defendants’ predecessor in title in 1976. The plaintiffs lot was developed and sold to the plaintiffs predecessor in title in 1977. Neither the subdivision documents nor the parties’ deeds contain any reference to an easement or right-of-way in favor of the defendants over the plaintiffs property. Although the subdivision map shows the driveway for the defendants’ lot on the opposite side of their property, away from the plaintiffs driveway, the driveway on the map was never constructed by the developer. The court also found that the defendants and their predecessors in title always have used the front portion of the plaintiffs driveway for access to their property. On the basis of these findings, the court concluded that at the time the parcels were severed, “an apparently permanent and obvious servitude (an easement or right-of-way over a small portion of the driveway for lot 12) was imposed in favor of the defendants’ predecessors in title.”

In evaluating the reasonably necessary factor for an easement by implication, we have explained: “[I]n so far as necessity is significant [for an easement by implication] it is sufficient if the easement is highly convenient and beneficial for the enjoyment of the dominant estate.” (Internal quotation marks omitted.) Gemmell v. Lee, supra, 59 Conn. App. 577. The court, in examining the reasonable necessity element, found that the defendants were credible in their testimony that it would cost more than $22,000 to construct a driveway on their own property and that because of ledge, blasting would have to be done. Although the plaintiff complains on appeal that the court accepted the testimony of the defendants, issues of credibility are for the trier of fact, and we, on appeal, cannot evaluate the credibility of the witnesses. See Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 65, 931 A.2d 237 (2007) (“[I]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. ... On appeal, we do not retry the facts or pass on the credibility of witnesses.” [Internal quotation marks omitted.]).

After hearing the testimony and reviewing the other evidence, the court found that “based on the significant cost of relocating a driveway to the defendants’ home, the risks associated with the blasting near the defendants’ home, the limited impact ... on the plaintiffs property . . . the grade of the defendants’ property, and safety issues associated with the construction of a steep driveway, ” the easement was “reasonably necessary for the fair enjoyment of the defendants’ property.” A review of the evidence presented indicates that the court’s factual findings have support in the record. Accordingly, they are not clearly erroneous.

Ill

The plaintiffs final claim is that the court improperly granted an overbroad and undefined easement to the defendants. We agree.

“The determination of the scope of an easement is a question of fact. . . . [W]e have stated that [t]he use of an easement must be reasonable and as little burdensome to the servient estate as the nature of the easement and the purpose will permit. . . . The decision as to what would constitute a reasonable use of a right-of-way is for the trier of fact whose decision may not be overturned unless it is clearly erroneous.” (Internal quotation marks omitted.) First Union National Bank v. Eppoliti Realty Co., 99 Conn. App. 603, 608, 915 A.2d 338 (2007).

In this case, the court specifically “awarded judgment recognizing a right-of-way over the driveway apron located on the plaintiffs property. This right-of-way measures approximately ten feet wide by twenty feet long.” The judgment did not define the scope of the easement or the precise location of the ten foot wide easement within the plaintiffs twenty-five foot wide driveway.

In other cases in which a trial court has failed to determine the precise scope of a remedial order, the Supreme or Appellate Courts have remanded the matter to the trial court for further proceedings to determine the precise remedy. See, e.g., McBurney v. Cirillo, 276 Conn. 782, 823, 889 A.2d 759 (2006) (remanding for determination of scope of implied easement); A & M Realty v. Dahms, 217 Conn. 95, 103, 584 A.2d 466 (1991) (affirming judgment but remanding for modification of monetary award); First Union National Bank v. Eppoliti Realty Co., supra, 99 Conn. App. 611 (remanding for determination of scope of easement by necessity); Simone v. Miller, 91 Conn. App. 98, 112, 881 A.2d 397 (2005) (remanding for determination of scope of right-of-way); Detar v. Coast Venture XXVX, Inc., 74 Conn. App. 319, 324, 811 A.2d 273 (2002) (remanding with direction to recalculate damages); Glasson v. Portland, 6 Conn. App. 229, 237, 504 A.2d 550 (1986) (remanding for hearing on nature and scope of injunction). Accordingly, in this case a remand is necessary for the court to determine the precise scope and exact location of the defendants’ easement by implication over a portion of the plaintiffs driveway.

The judgment is affirmed as to the grant of the easement by implication and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The plaintiffs brief at times is confusing. Initially, he argues: “The two types of easements that the defendants appear to have requested from the trial court are an easement by implication and an easement by necessity." He then argues that an “easement by necessity [is] now known as an easement by implication . . . .” Later in his brief, the plaintiff argues that there was no proof of a prescriptive easement, and “therefore none should [have] been found by the trial court.” He then discusses the elements of an easement by prescription in an attempt to demonstrate that one could not be proved in this case. Finally, in his reply brief, the plaintiff argues: “In this case, the trial court held that the defendants-appellees had an easement by implication, which the defendants-appellees had not alleged in their counterclaim.” He then states that “[t]he argument of an easement by necessity fails in this action.” We have done our best to characterize the defendant’s claim and arguments accurately.


author: LAVINE, J.

text:
    ROBERT A. SOKOLOSKI v. CAMERON A. MCCORISON ET AL.
    (AC 28436)
    McLachlan, Lavine and Foti, Js.

      Argued March 11
    officially released June 10, 2008

      Henry C. Ide, for the appellants (named defendant et al.).

      Timothy Brignole, with whom, on the brief, was Juri E. Taalman, for the appellee (plaintiff).
   Opinion

LAVINE, J.

The defendants, Cameron A. McCorison and his mother, Andrea McCorisin, appeal from the judgment of the trial court rendered in favor of the plaintiff, Robert A. Sokoloski, in this quiet title action concerning a boundary dispute. On appeal, the defendants claim, alternatively, that the court improperly concluded that the plaintiff (1) was the fee simple owner of the land in dispute, (2) had a right-of-way over the land in dispute by way of adverse possession and (3) had a prescriptive easement over the land in dispute. We conclude that the court properly determined that the plaintiff was the fee simple owner of the land in dispute and, therefore, affirm the judgment of the trial court.

In its detailed memorandum of decision, the court found the following relevant facts, which are not in dispute. In 1953, Thomas Krasnoger, Sr., and his wife, Agnes Krasnoger (Krasnoger parents), owned thirty acres of land from east of North Road in East Granby to the Granby-East Granby town line, known as 56 North Road. On January 9,1954, the Krasnoger parents subdivided a portion of their land to the south by quitclaiming two parcels of it, one to their son, Thomas Krasnoger, Jr., and one to their son, Frank Krasnoger. Thomas Krasnoger, Jr., received what is now known as 54 North Road, and Frank Krasnoger received what is now known as 52 North Road. The dispute in this case concerns the boundary between 54 North Road and 56 North Road, which arose subsequent to the plaintiffs purchasing 54 North Road from Thomas Krasnoger, Jr., and Mary Ann Krasnoger on September 28, 1993.

The defendants obtained interests in 56 North Road by devise from Agnes Krasnoger. In 2004, Wilson M. Alford, Jr., prepared an A-2 survey (Alford survey) as part of the settlement of the estate of Agnes Krasnoger. After receiving the Alford survey, Cameron McCorison confronted the plaintiff regarding the location of the boundary between 56 North Road and 54 North Road. Steven C. Cotton, Sr., of Henry C. Cotton & Associates, prepared an A-2 survey dated September 17, 2004, revised October 19, 2004 (Cotton survey).

By complaint dated December 9, 2004, the plaintiff alleged six counts to settle the issue of the land in dispute created by the question of the location of the boundary between 54 North Road and 56 North Road. Only count two, alleged pursuant to General Statutes § 47-31, the quiet title statute, is at issue here. In simplest terms, the question is whether the boundary between the two properties extends easterly and perpendicularly from North Road, as the plaintiff claims, or whether the southern boundary of 56 North Road extends southeasterly from North Road forming an obtuse angle, as the defendants claim. The land in dispute lies between the claimed perpendicular boundary and the claimed obtuse boundary. The evidence presented at trial, which was held in July, 2006, consisted of testimony from fact and expert (surveyor) witnesses, deeds of conveyance and surveys concerning the subject properties and other documents.

On the basis of the totality of the evidence, the court found by clear and convincing evidence that the plaintiff is the owner in fee simple of the area marked as “disputed area” in the plaintiffs exhibit four, the Cotton survey. To make that determination, the court found that the boundary between 54 North Road and 56 North Road runs east, perpendicular to North Road, as the plaintiff claimed. The court ordered Cotton to prepare an A-2 survey of 54 North Road in accordance with the court’s findings with appropriate language for the court’s signature to be placed on the land records of the town of East Granby. The defendants appealed.

On appeal, the defendants claim that the court improperly found, pursuant to § 47-31, that the plaintiff was the fee simple owner of the land in dispute. In their brief, the defendants do not dispute that the plaintiff is the owner in fee simple of a piece of property in the shape of a parallelogram on North Road with 130 feet of frontage on North Road and running 200 feet to the rear in a generally southeasterly direction. The defendants contend, however, that the court erroneously found that the deeds to 54 North Road described the shape of 54 North Road as being a rectangle.

“[W]here the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Internal quotation marks omitted.) Remington Investments, Inc. v. National Properties, Inc., 49 Conn. App. 789, 797, 716 A.2d 141 (1998). “A court’s determination is clearly erroneous only in cases in which the record contains no evidence to support it, or in cases in which there is evidence, but the reviewing court is left with the definite and firm conviction that a mistake has been made.” (Emphasis in original; internal quotation marks omitted.) MacDonald v. Pinto, 62 Conn. App. 317, 320, 771 A.2d 156 (2001).

In support of their claim, the defendants argue that the court improperly relied on the testimony of Mary Ann Krasnoger, the plaintiff and Cotton as to the location of the boundary between 54 North Road and 56 North Road, which is relevant only to the plaintiffs claim of adverse possession and is not written indicia of title in contravention of § 47-31 (f) and Clark v. Drska, 1 Conn. App. 481, 473 A.2d 325 (1984).

This court has construed § 47-31 (f) “as requiring a determination of record title before the issue of adverse possession is reached. Such a construction is based on the fact that the statute lists things which fall into the same category, that of written documentation of title. If the words ‘sources of title’ were broad enough to include facts comprising adverse possession, the words ‘determine the construction of the same’ would make no sense. It is the written indicia of title to which the statute refers.” Id., 488.

The court found that the plaintiffs exhibit three, a mortgage survey prepared for Society for Savings in April, 1956, describes 54 North Road as being rectangular in shape. Although the court found that the Society for Savings survey was only a class D survey, all of the deeds in the chain of title from the Krasnoger parents to the plaintiff describe 54 North Road as being a rectangle, namely, 130 feet along North Road and the easterly boundary and 200 feet on the northerly and southerly boundaries.

The court found the plaintiffs exhibit five to be particularly damaging to the defendants’ case. Exhibit five is an application for a building permit dated July 2, 1958, signed by Thomas Krasnoger, Jr., for permission to build a garage. The application states that the side yard from the most northerly comer of the garage to the northerly boundary of the property owned by Thomas Krasnoger, Jr., and Mary Ann Krasnoger is fifty feet. Using the scale on the Cotton survey, fifty feet would extend to the boundary line claimed by the plaintiff. Using the same scale to measure the most northemly comer of the garage to the boundary claimed by the defendants would be a distance of five feet. Five feet is less than the setback required by the East Granby zoning code, which went into effect in 1957. The court found most important the belief of Thomas Krasnoger, Jr., expressed in the building application, that the side yard was fifty feet from his property line.

On the basis of our review of the pleadings, the court’s memorandum of decision and the evidence presented at trial, we conclude that the court’s decision is grounded in written indicia of title. See footnote 5; cf. Loeb v. Al-Mor Corp., 42 Conn. Sup. 279, 615 A.2d 182 (1991) (quieting title pursuant to deeds in chains of title and stipulation of parties), aff'd, 224 Conn. 6, 615 A.2d 149 (1992). At trial, the court was presented with two class A-2 surveys, both prepared in 2004. It is significant that the court made a specific and detailed finding of credibility. It found Cotton to be a more credible expert witness than Alford. A reviewing court does not judge the credibility determinations of the trier of fact. “Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness’ conduct, demeanor and attitude.” (Internal quotation marks omitted.) McCarthy v. Ward Leonard Electric Co., 104 Conn. App. 535, 545, 935 A.2d 189 (2007). “It is the quintessential function of the finder of fact to reject or accept evidence and to believe or disbelieve any expert .... The trier may accept or reject, in whole or in part, the testimony of an expert.” (Internal quotation marks omitted.) Chester v. Derby, 96 Conn. App. 207, 218, 899 A.2d 624, cert. denied, 280 Conn. 909, 907 A.2d 88 (2006).

The judgment is affirmed.

In this opinion the other judges concurred.

       Mary Ann Krasnoger and the Connecticut Attorneys Title Insurance Company also were named as defendants. Krasnoger is not a party to this appeal, and the action against the title insurance company was withdrawn before trial. We therefore refer in this opinion to the McCorisons as the defendants

       The court rendered judgment in favor of the plaintiff on counts one (adverse possession), two (quiet title) and three (precriptive easement) of his complaint and for Mary Ann Krasnoger, a former owner of the plaintiffs land, on counts four and five.

       Because we conclude that the court properly determined that the plaintiff was the fee simple owner of the land in dispute, we need not consider the defendants’ other claims.

       Thomas Krasnoger, Jr., quitclaimed 54 North Road through a straw man to himself and to Mary Ann Krasnoger in 1956. The quitclaim deeds were placed into evidence.

       Cotton testified that his firm was asked to examine the land records to ascertain what they indicated and then to perform a boundary survey of the property. Cotton examined deeds in the East Granby land records. No map was filed on the land records when the Krasnoger parents subdivided their land. No maps were filed between 1954 and September, 2004, that identified 52 North Road, 54 North Road and 56 North Road. Cotton found maps of abutting properties that depicted the boundaries of 56 North Road, prior to its subdivision. Cotton used the quitclaim deeds of the Krasnoger parents to Thomas Krasnoger, Jr., and to Frank Krasnoger to establish the boundaries of 54 North Road.

       General Statutes § 47-31 (a) provides in relevant part: “An action may be brought by any person claiming title to, or any interest in, real . . . property . . . against any person who may claim to own the property . . . in fee . . . adverse to the plaintiff . . . for the purpose of determining such adverse estate, interest or claim, and to clear up all doubts and disputes and to quiet and settle the title to the property. . . .”

       In count one of his complaint, the plaintiff alleged that he had acquired fee ownership of the land in dispute by way of adverse possession.

       General Statutes § 47-31 (f) provides: “The court shall hear the several claims and determine the rights of the parties, which derived from deeds, wills or other instruments or sources of title, and may determine the construction of the same, and render judgment determining the questions and disputes and quieting and settling the title to the property.”

       The Alford survey is primarily concerned with the present boundaries of 56 North Road, and Alford did not perform a comprehensive examination of the field, as did Cotton. Alford relied on only one map, that of the adjacent Serafín property. The court also noted that Alford misspelled the plaintiffs name on his survey, contradicted himself and was inarticulate during his testimony.
      Moreover, the court found the plaintiff and Cotton to be more credible witnesses than Mary Ann Krasnoger, as her testimony at trial was often at odds with her deposition testimony, in which she admitted that the shape of 54 North Road was a rectangle. The court found a notation on the Cotton survey determinative. The Cotton survey “with the name correctly spelled, dated September 17,2004, and revised October 19,2004, to show the disputed area . . . was made on or about the time of the revision . . . .”
      The notation states: “In October, 2004, former owner Mary Ann Krasnoger, present owner Robert A. Sokoloski and Stephen S. Cotton, Sr., L.S. met at site to review disputed southerly property line of land now owned by Cameron A. McCorison abutting land owned by Robert A. Sokoloski. See line ‘A’ to ‘B’ as depicted on this plan. According to Mary Ann Krasnoger, said line is the recognized property line that she and her deceased husband, Thomas Krasnoger, Jr., maintained from January, 1954 to September 1993, and is also the line shown to Robert A. Sokoloski at time of conveyance in September of 1993.”


author: ROBINSON, J.

text:
    RICHARD P. GIANNAMORE v. DONALD E. SHEVCHUK
    (AC 28058)
    Bishop, Harper and Robinson, Js.

      Argued January 16
    officially released June 10, 2008

      William S. Palmieri, for the appellant (plaintiff).

      Jane G. Beddall, with whom was Terence A. Zemetis, for the appellee (defendant).
   Opinion

ROBINSON, J.

This appeal arises out of a malicious prosecution action brought by the plaintiff, Richard P. Giannamore, against the defendant, Donald E. Shevchuk. On appeal, the plaintiff claims that the trial court improperly set aside the jury’s verdict and concluded that he had failed to establish that the defendant acted without probable cause to initiate criminal proceedings against him. Additionally, the defendant claims, as alternate grounds for affirming the judgment of the court, that there was insufficient evidence to support the jury’s findings that (1) he initiated the criminal proceedings against the plaintiff and (2) he acted with malice or an improper purpose other than bringing an offender to justice. We agree with the plaintiff and disagree with the defendant. Accordingly, we reverse the judgment of the trial court.

The following facts and procedural history are necessary for our discussion. The plaintiff commenced a five count action against the defendant on March 5, 2001. The operative complaint, dated March 22,2006, set forth a single count of malicious prosecution. This action originated out of a contract dispute between the plaintiff, a self-employed painter, and the defendant, a public defender in the Bristol courthouse.

On August 22,1995, the parties entered into two written contracts. The first was for the interior of the defendant’s house. The plaintiff was to paint the interior walls, ceilings and trim work in exchange for $5000. The plaintiff acknowledged the receipt of a $3000 deposit with the balance due upon completion. The second contract required the plaintiff to paint the exterior of the house. The plaintiff accepted a $2000 deposit for the exterior contract.

The interior contract required the plaintiff to complete the painting of the interior ten days after all of the interior trim work had been installed by a different contractor. It further stated that the plaintiff was not responsible for time lost because materials had not arrived or been installed. By September 20,1995, neither the interior nor the exterior painting had been completed. On that date, the parties executed a written amendment to the two August 22, 1995 contracts. The prior contracts remained in effect, but the two deposits were now applied exclusively to the interior painting contract, paying it in full. The plaintiff also acknowledged the receipt of an additional sum of money, approximately $1666. Ultimately, the interior painting was never completed, and the exterior painting was never commenced.

In November, 1995, the defendant contacted Christopher Bartolotta, a state police trooper, regarding the painting of the house. Bartolotta advised him that his situation should be addressed as a civil matter in the court system. The defendant subsequently spoke with a prosecutor at the Bristol courthouse. The prosecutor advised the defendant to send the plaintiff a letter demanding the return of the money.

On December 27,1995, the defendant again contacted Bartolotta. Bartolotta took a statement from the defendant, reviewed certain documents and contacted the office of the state’s attorney. In his written statement, the defendant alleged that the “total amount [the plaintiff] stole ... by not doing the agreed work, not showing up and continually asking me for additionally money was $3666.00.” As a result of his investigation, Bartolotta prepared an application for an arrest warrant. A prosecutor in the Bristol courthouse, where the defendant worked, reviewed and approved the arrest warrant application. It then was signed by a judge of the Superior Court. Neither the defendant’s written statement nor Bartolotta’s arrest warrant application mentioned the terms of the amended contract. Furthermore, the arrest warrant indicated that $3666 had been stolen: $2000 from the initial deposit on August 22, 1995, and the $1666 payment made on September 22, 1995.

On March 6, 1996, the plaintiff was arrested at his home for committing the crime of larceny in the third degree in violation of General Statutes § 53a-124. Incident to his arrest, the plaintiff was searched and a double edged knife was found on his person. As a result, the plaintiff also was charged with carrying a dangerous weapon in violation of General Statutes § 53-206 (a).

The plaintiff paid attorney John R. Williams $14,000 to represent him with respect to the pending criminal charges. The larceny case eventually was transferred from the Bristol courthouse to Hartford. That case was nolled and dismissed on September 1, 1998.

The plaintiffs malicious prosecution action was tried before the jury. At the conclusion of the plaintiffs case, the defendant moved for a directed verdict. After hearing argument, the court reserved its decision on the defendant’s motion. The court submitted interrogatories to the jury as requested by the defendant. The jury returned a verdict in favor of the plaintiff and awarded the plaintiff a total of $39,000 in damages, subject to a setoff of $6665.

Following the jury’s verdict, the defendant filed a motion to set aside, a motion for remittitur, a motion for a decision on the motion for a directed verdict and an application for a judicial determination of probable cause. On September 1, 2006, the court issued a memorandum of decision granting the motion to set aside the verdict.* * The court concluded that “[b]ased on the undisputed facts . . . the plaintiff cannot sustain his burden of proving that the defendant lacked probable cause to bring his complaint to the police.” The court reasoned that the plaintiff himself acknowledged that he took money from the defendant and never returned to the house. In the view of the court, these facts supported the defendant’s reasonable belief that the plaintiff had taken more than $1000 and wrongfully refused to return it. Because the plaintiff had failed to prove that the defendant lacked probable cause, his claim for malicious prosecution likewise failed. This appeal followed. Additional facts will be set forth as necessary.

I

On appeal, the plaintiff claims that the court improperly set aside the jury’s verdict and improperly concluded that he had failed to establish that the defendant acted without probable cause to initiate criminal proceedings. Although the plaintiff has briefed these claims separately, in our view, they are intertwined, with the latter being the key issue. Simply put, the dispositive issue is whether the court properly determined that the defendant had probable cause to initiate criminal proceedings.

To facilitate our discussion, it is appropriate to set forth the legal principles regarding the tort of malicious prosecution. “The interest in freedom from unjustifiable litigation is protected by actions for malicious prosecution and abuse of process. ... In malicious prosecution cases . . . the emphasis is upon the misuse of criminal . . . action as a means for causing harm. . . . The law supports the use of litigation as a social means for resolving disputes, and it encourages honest citizens to bring criminals to justice. Consequently the accuser must be given a large degree of freedom to make mistakes and misjudgments without being subject to liability. On the other hand, no one should be permitted to subject a fellow citizen to prosecution for an improper purpose and without an honest belief that the accused may be found guilty.” (Emphasis added.) W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 119, pp. 870-71. Indeed, our Supreme Court expressly has recognized that the “law governing malicious prosecution seeks to accommodate two competing and ultimately irreconcilable interests. It acknowledges that a person wrongly charged with criminal conduct has an important stake in his bodily freedom and his reputation, but that the community as a whole has an even more important stake in encouraging private citizens to assist public officers in the enforcement of the criminal law. 1 F. Harper & F. James, Torts (1956) § 4.11.” McHale v. W.B.S. Corp., 187 Conn. 444, 447-48, 446 A.2d 815 (1982); see generally Rioux v. Barry, 283 Conn. 338, 343-49, 927 A.2d 304 (2007).

The elements of malicious prosecution are well established. “An action for malicious prosecution against a private person requires a plaintiff to prove that: (1) the defendant initiated or procured the institution of criminal proceedings against the plaintiff; (2) the criminal proceedings have terminated in favor of the plaintiff; (3) the defendant acted without probable cause; and (4) the defendant acted with malice, primarily for a purpose other than that of bringing an offender to justice.” McHale v. W.B.S. Corp., supra, 187 Conn. 447; see also 52 Am. Jur. 2d 145, Malicious Prosecution § 8 (2000); D. Wright, J. Fitzgerald & W. Ankerman, Connecticut Law of Torts (3d Ed. 1991) § 161, p. 430. Our Supreme Court has described these elements of the tort as the “ ‘stringent requirements’ . . . .” Gallo v. Barile, 284 Conn. 459, 475, 935 A.2d 103 (2007); 52 Am. Jur. 2d 143, supra, § 5 (“Actions for malicious prosecution are not favored by the courts. Thus, a malicious prosecution action is subject to limitations that are more stringent than those surrounding other kinds of actions, and recovery is allowed only if the requirements have been fully complied with.”).

The focus of our inquiry is the third element of malicious prosecution; that is, whether the defendant acted without probable cause. “Probable cause has been defined as the knowledge of facts sufficient to justify a reasonable [person] in the belief that he [or she] has reasonable grounds for prosecuting an action. . . . Mere conjecture or suspicion is insufficient. . . . Moreover, belief alone, no matter how sincere it may be, is not enough, since it must be based on circumstances which make it reasonable. . . . Although want of probable cause is negative in character, the burden is upon the plaintiff to prove affirmatively, by circumstances or otherwise, that the defendant had no reasonable ground for instituting the criminal proceeding.” (Citations omitted; internal quotation marks omitted.) Mulligan v. Rioux, 229 Conn. 716, 739, 643 A.2d 1226 (1994), on appeal after remand, 38 Conn. App. 546, 662 A.2d 153 (1995). It is well established in our jurisprudence that “[t]he existence of probable cause is an absolute protection against an action for malicious prosecution . . . .” (Internal quotation marks omitted.) Vandersluis v. Weil, 176 Conn. 353, 356, 407 A.2d 982 (1978); Hebrew Home & Hospital v. Brewer, 92 Conn. App. 762, 767, 886 A.2d 1248 (2005).

Our Supreme Court has instructed that “[w]hether the facts are sufficient to establish the lack of probable cause is a question ultimately to be determined by the court, but when the facts themselves are disputed, the court may submit the issue of probable cause in the first instance to a jury as a mixed question of fact and law.” DeLaurentis v. New Haven, 220 Conn. 225, 252-53, 597 A.2d 807 (1991); see also Cosgrove Development Co. v. Cafferty, 179 Conn. 670, 671, 427 A.2d 841 (1980); Embalmers’ Supply Co. v. Giannitti, 103 Conn. App. 20, 35, 929 A.2d 729, cert. denied, 284 Conn. 931, 934 A.2d 246 (2007). In other words, the role of the jury is to find the underlying facts pertaining to the question of the lack of probable cause. The issue of probable cause in a malicious prosecution, however, ultimately presents a question of law that must be determined by the court. Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 94, 912 A.2d 1019 (2007); Vandersluis v. Weil, supra, 176 Conn. 356; McMahon v. Florio, 147 Conn. 704, 707, 166 A.2d 204 (1960) (“ [w] hether particular facts constitute probable cause is a question of law”). Accordingly, our review is plenary. Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, 94.

The plaintiff testified that on August 22, 1995, he entered into a contract with the defendant and accepted a $3000 deposit to paint the interior of the defendant’s home and an additional $2000 deposit to paint the outside of the defendant’s home. He further testified that on September 20,1995, the parties amended their earlier agreement. In the amended agreement the parties agreed that the $5000 that previously had been paid to the plaintiff would be applied fully to the painting of the interior of the home. Furthermore, on that date, the plaintiff received additional money from the defendant. The plaintiff explained that he needed the additional money “[b]ecause of the holdups on the job. And if [the defendant] wanted me to keep going, I needed to pay the guy that was with me at the time.” On direct examination, the plaintiff stated that he stopped working on the defendant’s home in mid-September, 1995.

During cross-examination, the plaintiff acknowledged that he had completed approximately 85 percent of the interior painting of the second floor and had not done any work with respect to the outside of the home. The plaintiff then admitted that he did not return to the defendant’s home after September 20, 1995, the date that he signed the amendment to the contract. The plaintiff further stated that from September 20 through 30, 1995, he worked at a different location and never returned to the defendant’s home.

During his testimony, the defendant stated that the plaintiff threatened to stop working and place a lien on the house if the defendant did not pay him additional money. He further testified that the parties communicated several times between September 20 and 27,1995. On October 3, 1995, the defendant inspected the house and determined that no additional work had been done and spoke with the plaintiff. The defendant stated that the plaintiff again requested the rest of the money from the contract to complete the work. The defendant testified that he refused to pay the remainder of the money and told the plaintiff that he would take care of completing the work on the house.

At the outset of our analysis, we point out the interactions of the various standards of review applicable to the plaintiffs claim. The ultimate question before us is whether the trial court properly determined, as a matter of law, that the defendant had probable cause to initiate criminal proceedings against the plaintiff. As we previously have explained, we review that conclusion under the plenary standard of review. See Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, 281 Conn. 94. We are mindful, however, that the facts underlying that conclusion present a question for the jury. See DeLaurentis v. New Haven, supra, 220 Conn. 252-53. In this instance, the record reveals that the court did not submit interrogatories to the jury regarding predicate facts relating to probable cause. Rather, the court submitted the ultimate legal issue to the jury. Although the court was not bound by the jury’s determination that the defendant had no probable cause, the record supports the jury’s implicit finding that the defendant and the plaintiff had an ongoing dispute regarding the plaintiffs services and the defendant’s payment for them.

Although the parties agree that the defendant paid the plaintiff an additional sum of money on September 20, 1995, there was conflicting testimony as to the purpose of that payment. The plaintiff testified as to the significant delays that disrupted his schedule and resulted in the need for additional money to pay his employee. Additionally, there was testimony that the defendant was told that disputes regarding contractual matters are civil actions, not criminal matters. Both Bartolotta and the defendant testified to that effect. Furthermore, both parties were aware that this matter constituted a contractual dispute over the work done by the plaintiff and the amount of money paid by the defendant. Significantly, the defendant was aware that the plaintiff required payment of additional money before he would complete the work. Simply put, there was ample evidence in the record from which the jury could find that the defendant was aware that the plaintiff believed that he was entitled to the additional money and therefore lacked the intent to deprive the defendant of his money wrongfully.

Under these facts and circumstances, we conclude, as a matter of law, that a reasonable person in the position of the defendant would not believe that he had grounds for prosecuting a criminal action. We further conclude that the court improperly determined that the plaintiff failed to satisfy the requirement of proving lack of probable cause and improperly set aside the jury’s verdict.

II

We now consider the defendant’s alternate grounds for affirming the judgment of the court. The defendant claims that there was insufficient evidence to support the jury’s findings that (1) he initiated the criminal proceedings against the plaintiff and (2) he acted with malice or an improper purpose other than bringing an offender to justice. We are not persuaded by either of the defendant’s claims.

As a preliminary matter, we set forth the applicable standard of review. “An appeal based on the sufficiency of evidence to support a factual finding carries a legal and practical restriction to review. The function of an appellate court is to review, and not to retry, the proceedings of the trial court. . . . Further, we are authorized to reverse or modify the decision of the trial court only if we determine that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that its decision is otherwise erroneous in law.” (Internal quotation marks omitted.) Anderson v. Whitten, 100 Conn. App. 730, 739, 918 A.2d 1056 (2007).

We previously have stated: “[I]t is not the function of this court to sit as the seventh juror when we review the sufficiency of the evidence . . . rather, we must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, supports the jury’s verdict .... In making this determination, [t]he evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable. ... In other words, [i]f the jury could reasonably have reached its conclusion, the verdict must stand, even if this court disagrees with it.” (Internal quotation marks omitted.) Davis v. Manchester Health Center, Inc., 88 Conn. App. 60, 69-70, 867 A.2d 876, cert. denied, 273 Conn. 936, 875 A.2d 543 (2005). Guided by these principles, we consider each of the defendant’s claims in turn.

A

The defendant first claims that there was insufficient evidence to support the jury’s finding that he initiated the criminal proceedings against the plaintiff. Specifically, he argues that he did nothing more than supply private assistance to law enforcement officials. We disagree with the defendant.

Our Supreme Court has stated: “The policy of encouraging private citizens to assist in law enforcement is vindicated, in the law of malicious prosecution, by providing a limited immunity in the form of the first element that the plaintiff must prove to maintain his cause of action. A private person can be said to have initiated a criminal proceeding if he has insisted that the plaintiff should be prosecuted, that is, if he has brought pressure of any kind to bear upon the public officer’s decision to commence the prosecution. . . . But a private person has not initiated a criminal proceeding if he has undertaken no more than to provide potentially incriminating information to a public officer. In such a case, if the defendant has made a full and truthful disclosure and has left the decision to prosecute entirely in the hands of the public officer, he cannot be held liable for malicious prosecution.” (Citations omitted; emphasis added; internal quotation marks omitted.) McHale v. W.B.S. Corp., supra, 187 Conn. 448; LeFebvre v. Zarka, 106 Conn. App. 30, 36, 940 A.2d 911 (2008).

There was evidence in the record to support the jury’s finding that the defendant initiated the criminal proceeding against the plaintiff. “A person is deemed to have initiated a proceeding if his direction or request, or pressure of any kind by him, was the determining factor in the officer’s (or prosecutor’s) decision to commence the prosecution.” (Internal quotation marks omitted.) Fatone v. DeDomenico, 161 Conn. 576, 577, 290 A.2d 324 (1971). The defendant went to Bartolotta, then the prosecutor and then back to Bartolotta seeking the prosecution of the plaintiff. The jury reasonably could have found that the defendant’s persistence was a determinative factor in the decision to commence the prosecution of the plaintiff.

Additionally, the jury reasonably could have found that the defendant failed to make a full and truthful disclosure of the actions of the plaintiff. The defendant failed to mention to Bartolotta the amended contract of September 20, 1995. His written statement indicated that the plaintiff had stolen not only the $1666 from the September 20, 1995 payment, but also the initial $2000 that had been used as a deposit for the exterior in the original contract of August 22, 1995. The defendant failed, however, to inform Bartolotta that the original contract had been amended subsequently and that the $2000 had been applied to the interior painting, not to the exterior. The defendant also failed to disclose the fact that the delays of the painting were a result of factors outside of the plaintiffs control, namely, the lack of progress with respect to the interior trim work. We agree with the statement of the United States Court of Appeals for the Eighth Circuit: “Where the informant knowingly gives false or misleading information or in any wise directs or counsels officials in such a way so as to actively persuade and induce the officer’s decision, then the informant may still be held liable.” White v. Chicago, Burlington & Quincy Railroad, 417 F.2d 941, 943 (8th Cir. 1969). There was sufficient evidence in the record for the jury to conclude that the defendant insisted on the prosecution of the plaintiff and provided misleading information to the investigating state trooper. Accordingly, we cannot conclude that the jury’s finding was clearly erroneous.

B

The defendant next claims that there was insufficient evidence to support the jury’s finding that he acted with malice or an improper purpose other than bringing an offender to justice. Specifically, he argues that there was no evidence in the record that he acted with an improper purpose. We disagree.

Our Supreme Court has stated: “In a malicious prosecution action, the defendant is said to have acted with malice if he [or she] acted primarily for an improper purpose; that is, for a purpose other than that of securing the proper adjudication of the claim on which [the proceedings] are based . . . .” (Citation omitted; internal quotation marks omitted.) Mulligan v. Rioux, supra, 229 Conn. 732; see also 3 Restatement (Second), Torts, Malicious Prosecution § 668, p. 438 (1977). Furthermore, we note that “[m]alice may be inferred from lack of probable cause.” Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, 281 Conn. 94. If the evidence supports a finding of a lack of probable cause, then the fact finder reasonably may conclude that the defendant acted with malice. See Mulligan v. Rioux, supra, 746.

Our review of the record reveals ample evidence from which the jury reasonably could have concluded that the defendant acted with a purpose other than bringing a criminal offender to justice. The use of criminal proceedings to recover a debt, even money lawfully owed to an accuser, is improper and subjects a person to liability for malicious prosecution. See 3 Restatement (Second), supra, § 668, comment (g). The jury was free to find, on the basis of the evidence, that the defendant used criminal proceedings not to bring the plaintiff to justice, but to recover money from a contractual dispute. We cannot conclude that the finding that the defendant acted with malice or an improper purpose other than bringing an offender to justice, was clearly erroneous.

The judgment is reversed and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       In his statement of issues, the plaintiff set forth the following claims: (1) whether the jury found that he proved at trial that the defendant committed malicious prosecution; (2) whether the court properly submitted the issue of probable cause to the jury; (3) whether the court erred in finding that probable cause existed to arrest; (4) whether the court abused its discretion in directing the verdict; and (5) whether the court improperly set aside the verdict of the jury. We note that the court, in accordance with its decision on the motion to set aside the jury’s verdict, granted the defendant’s motion for a directed verdict. We therefore consider these claims together. Furthermore, because the plaintiffs first and second claims are subsumed in the broader question of whether the court improperly set aside the jury’s verdict and concluded that he had failed to establish that the defendant acted without probable cause to initiate criminal proceedings against the plaintiff, we do not address them separately. See State v. Olenick, 98 Conn. App. 638, 640 n.1, 910 A.2d 1002 (2006), cert. denied, 281 Conn. 920, 918 A.2d 273 (2007).

       The initial complaint alleged abuse of process, malicious prosecution, violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., intentional infliction of emotional distress and negligent infliction of emotional distress. The court granted the defendant’s motion to strike the CUTPA and intentional infliction of emotional distress counts. The court subsequently granted the defendant’s motion for summary judgment with respect to the abuse of process and negligent infliction of emotional distress counts.

       The defendant testified that he sent the following letter to the plaintiffs address: “[P]lease return to me immediately the $3665 I gave you toward materials and payment for painting the outside of my house. If I do not hear from you within seven days from receipt of this letter, I will report your activity to all appropriate authorities and institute whatever action is appropriate and necessary.” The address on the letter matched the plaintiffs address on the contract. The defendant further stated that he telephoned the plaintiff and recorded the text of the letter on the plaintiffs answering machine.

       The record reveals that the parties amended the contract on September 20, 1995, and that the plaintiff acknowledged the receipt of $1666 on that date, not on September 22, 1995, as indicated in paragraph seven of the arrest warrant application.

       We note that the court never considered the defendant’s motion for remittitur.

       “The standard of review governing our review of a trial court’s denial of a motion to set aside the verdict is well settled. The trial court possesses inherent power to set aside a jury verdict which, in the court’s opinion, is against the law or the evidence. . . . [The trial court] should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach [its] conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury m the application of legal principles. . . . Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion . . . that, in the absence of clear abuse, we shall not disturb.” (Internal quotation marks omitted.) Embalmers’ Supply Co. v. Giannitti, 103 Conn. App. 20, 32-33, 929 A.2d 729, cert. denied, 284 Conn. 931, 934 A.2d 246 (2007); see also Edmands v. CUNO, Inc., 277 Conn. 425, 452-53, 892 A.2d 938 (2006).

       We recently have described this element as “the gravamen of the tort." Heussner v. Day, Berry & Howard, LLP, 94 Conn. App. 569, 577, 893 A.2d 486, cert. denied, 278 Conn. 912, 899 A.2d 38 (2006); see also McMahon v. Florio, 147 Conn. 704, 706, 166 A.2d 204 (1960) (“[t]o maintain an action for malicious prosecution, the plaintiff must prove want of probable cause”).

       The plaintiff later testified that the parties had entered into two contracts, one for the interior and one for the exterior. Whether the parties had entered into one contract or two is not a significant factor to our analysis.

       The plaintiff testified that the trim work for the interior of the house was not being installed in a timely manner. As a result, the plaintiff was unable to maintain his schedule.

       In its memorandum of decision, the court stated: “Based on the undisputed facts in this case, the plaintiff cannot sustain his burden of proving that the defendant lacked probable cause to bring his complaint to the police.” We disagree that the facts in the present case were undisputed.

       “A specific intent to deprive or to misappropriate is an essential element of larceny.” (Internal quotation marks omitted.) State v. Sam, 98 Conn. App. 13, 35, 907 A.2d 99, cert. denied, 280 Conn. 944, 912 A.2d 478 (2006).