author: ROBINSON, J.

text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY, TRUSTEE v. MANUEL J. PEREZ ET AL.
    (AC 34773)
    Lavine, Robinson and Schaller, Js.

      Argued September 19
    officially released December 3, 2013

      Christopher G. Brown, for the appellants (named defendant et al.).

      Gerald L. Garlick, with whom was Katherine E. Abel, for the appellee (plaintiff).
   Opinion

ROBINSON, J.

The defendants in this residential mortgage foreclosure action, Manuel J. Perez and his wife, Janet W. Shaw, appeal from the trial court’s reformation of the subject mortgage and from the judgment of strict foreclosure subsequently rendered on the reformed mortgage in favor of the plaintiff, Deutsche Bank National Trust Company, as trustee for Har-borView Mortgage Loan Trust mortgage loan pass-through certificates, series 2006-7. The defendants claim that the court abused its discretion by reforming the mortgage on the basis of a mutual mistake to include Shaw as a mortgagor, thus impheating her undivided one-half interest in the mortgaged property, despite the fact that Shaw was not a signatory to the mortgage and never had agreed to mortgage her interest in the subject property, and by foreclosing upon the improperly reformed mortgage. We conclude that the court lacked the authority to reform the mortgage as it did, and, therefore, we reverse in part the judgment of the trial court.

The following facts, which either are undisputed in the record or were found by the trial court in its memorandum of decision, and procedural history are relevant to our resolution of this appeal. In June, 2009, the plaintiff commenced this action against the defendants regarding property they jointly owned in the Rowayton section of Norwalk. In count one of the two count complaint, the plaintiff sought reformation of a $1,576,000 mortgage that Perez had executed on May 11, 2006. The plaintiff alleged that Shaw’s name had been omitted from the mortgage by mutual mistake of the parties when it was executed. The plaintiff also alleged that Shaw’s name should have been included on the mortgage instrument as a mortgagor, because, at the time Perez executed the mortgage, he and Shaw co-owned the subject property as joint tenants pursuant to a November 4, 2005 quitclaim deed, and the parties to the mortgage had intended that the mortgage convey a 100 percent security interest in the subject property. Count two sought to foreclose the mortgage as reformed because the defendants were in default for failure to make payments in accordance with the note.

On July 10, 2009, the plaintiff filed a motion for judgment of strict foreclosure. On April 7, 2010, the defendants filed their answer, special defenses alleging that the subject mortgage was invalid, and a counterclaim seeking to quiet title. On August 25, 2011, the plaintiff successfully moved to bifurcate the proceedings, in that the court agreed first to consider whether the mortgage was valid and should be reformed to add Shaw as an additional mortgagor before turning to any remaining foreclosure issues.

The plaintiff argued at trial that the parties had made a mutual mistake with respect to the mortgage, because ABC, the original mortgagee; see footnote 2 of this opinion; intended to obtain a complete security interest in the subject property by receiving a mortgage from all parties holding an ownership interest in the subject property, and that Perez had intended to give ABC whatever was necessary to secure the loan from ABC. The defendants, however, argued that Shaw was not a party to the loan application or to the mortgage, nor did she know about the loan from ABC to Perez. Shaw was aware of Perez’ conveyance to her and of her resulting interest in the subject property; however, she had not seen the actual quitclaim deed transferring the subject property to herself and Perez as joint tenants until two weeks prior to trial.

At the conclusion of the trial, the plaintiff filed a motion to amend its complaint to conform to the evidence, seeking to allege that the November 4,2005 deed quitclaiming the subject property to Perez and Shaw as joint tenants was never delivered to Shaw or that Shaw never accepted the deed and, thus, that title to the property was wholly vested in Perez. The defendants objected to the motion to amend, arguing that the motion was procedurally improper and factually incorrect.

On May 17, 2012, the court filed a memorandum of decision in which it determined that the plaintiff and Perez had made a mutual mistake in executing the May 11, 2006 mortgage in that they both intended “that the [plaintiff] have a valid security interest in the property” and therefore Shaw should have been required to sign the mortgage so that Shaw’s interest in the subject property was included in the security. The court ordered that the mortgage be reformed by adding Shaw’s name as a mortgagor and including therein her interest in the subject property as if she had joined in the execution of the mortgage ab initio. The court further ordered that, in fight of its ruling, there was no need to adjudicate the plaintiffs motion to amend its complaint to conform to the evidence regarding whether title had in fact remained solely in the name of Perez. On June 6, 2012, the court granted the plaintiffs motion for judgment of strict foreclosure. This appeal followed.

We begin by setting forth some general principles of law that will guide us in our review of the defendants’ claims. “Reformation and foreclosure are both equitable proceedings.” Derby Savings Bank v. Oliwa, 49 Conn. App. 602, 604, 714 A.2d 1278 (1998). “We will reverse a trial court's exercise of its equitable powers only if it appears that the trial court’s decision is unreasonable or creates an injustice. . . . [E]quitable power must be exercised equitably . . . [but] [t]he determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court. ... In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action. . . . Our review of a trial court’s exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did.” (Citation omitted; internal quotation marks omitted.) Croall v. Kohler, 106 Conn. App. 788, 791-92, 943 A.2d 1112 (2008).

“A cause of action for reformation of a contract rests on the equitable theory that the instrument sought to be reformed does not conform to the real contract agreed upon and does not express the intention of the parties and that it was executed as the result of mutual mistake, or mistake of one party coupled with actual or constructive fraud, or inequitable conduct on the part of the other. . . . Reformation is not granted for the purpose of alleviating a hard or oppressive bargain, but rather to restate the intended terms of an agreement when the writing that memorializes that agreement is at variance with the intent of both parties .... Equity evolved the doctrine because an action at law afforded no relief against an instrument secured by fraud or as a result of mutual mistake. . . . The remedy of reformation is appropriate in cases of mutual mistake—that is where, in reducing to writing an agreement made or transaction entered into as intended by the parties thereto, through mistake, common to both parties, the written instrument fails to express the real agreement or transaction. ... In short, the mistake, being common to both parties, effects a result which neither intended.” (Citations omitted; internal quotation marks omitted.) Lopinto v. Haines, 185 Conn. 527, 531-32, 441 A.2d 151 (1981); see also 1 Restatement (Second) of Contracts § 155 (1981) (“[w]here a writing that evidences or embodies an agreement in whole or in part fails to express the agreement because of a mistake of both parties as to the contents or effects of the writing, the court may at the request of a party reform the writing to express the agreement except to the extent that rights of third parties . . . will be unfairly affected” [emphasis added]).

“[T]here can be no reformation unless there is an antecedent agreement upon which the minds of the parties have met. The relief afforded in reforming an instrument is to make it conform to the previous agreement of the parties. Therefore a definite agreement on which the minds of the parties have met must have pre-existed the instrument in question. The court cannot supply an agreement which was never made, for it is its province to enforce contracts, not to make or alter them.” Hoffman v. Fidelity & Casualty Co., 125 Conn. 440, 443, 6 A.2d 357 (1939); see also 7 J. Perillo, Corbin on Contracts, Avoidance and Reformation (Rev. Ed. 2002) § 28.45, pp. 281-82 (“Note the limited scope for reformation. Contracts are not reformed for mistake; writings are. The distinction is crucial.” [Footnote omitted.]).

“A court in the exercise of its power to reform a contract must act with the utmost caution and can only grant the relief requested if the prayer for reformation is supported by convincing evidence. ... In the absence of fraud, it must be established that both parties agreed to something different from what is expressed in writing, and the proof on this point should be clear so as to leave no room for doubt. . . . If the right to reformation is grounded solely on mistake, it is required that the mistake be mutual, and to prevail in such a case, it must appear that the writing, as reformed, will express what was understood and agreed to by both parties.” (Citations omitted; emphasis added.) Greenwich Contracting Co. v. Bonwit Construction Co., 156 Conn. 123, 126-27, 239 A.2d 519 (1968). A party seeking the reformation of a contract must show proof justifying reformation by “clear, substantial and convincing evidence,” meaning evidence that “induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, [and] that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.” (Internal quotation marks omitted.) Lopinto v. Haines, supra, 185 Conn. 534. With those principles in mind we turn to the defendants’ claims.

On appeal, the defendants claim that the court abused its discretion by reforming the mortgage to include Shaw as a mortgagor, thereby including her undivided one-half interest in the mortgaged property as security for the note. The defendants argue that because Shaw was not an intended signatory to the mortgage and, more importantly, never had agreed to mortgage her interest in the subject property, the court lacked the authority to reform the mortgage as it did. Because our review of the record reveals the absence of clear, substantial and convincing evidence that Shaw participated in Perez’ efforts to obtain the loan or execute the mortgage currently at issue, and the court made no findings of fraud or improper motives on the part of either Perez or Shaw, we conclude that the court abused its discretion in reforming the mortgage to add Shaw as a party because, in so doing, the court created an entirely new contract, which it lacked the authority to do.

The following additional facts are pertinent to our review of the court’s adjudication of the reformation count. The purpose of the mortgage loan was to finance the cost of care and treatment for Perez’ teenaged son, who was suffering from a serious drug addiction. Shaw was not the son’s mother, and Perez did not want to involve her in his personal problems. At the time he executed the subject mortgage, Perez’ mind was preoccupied, and he was in a state of confusion and failed to realize that Shaw’s signature was required on the mortgage. As a result of this mental state, he “completed all of the essential steps without giving any thought to how title to the property stood and the need for his wife’s signature.”

Shaw was not present at the closing. She did not sign the loan application, and there is no evidence that she communicated with the lender ABC or participated in any way in securing the loan. All documents were prepared at the instigation of the lender, although it cannot be determined by whom they actually were drafted. Neither Perez nor the lender were represented by counsel at the closing, which was conducted by a closing agent. A title insurance commitment that was part of the closing documents received by the closing agent specified that a mortgage should be obtained from both Perez and Shaw. Nevertheless, “the mortgage was prepared by or for the lender for Perez’ signature only and the instructions to the closing agent erroneously reflected that Perez was the sole applicant and borrower.” The instructions specified that “all nonbor-rowing title holders must sign signature page of mortgage” and contained language authorizing the closing agent to add any missing names as necessary. That, however, was not done. There is no evidence explaining the lack of conformity between the mortgage, the title commitment and the actions of the closing agent. Shaw was never asked to sign the mortgage; it was executed as prepared with only Perez’ signature.

In exercising its equitable power of reformation, a court is limited to correcting mistakes in a written instrument so that the writing conforms with the true agreement and intent that existed between the actual parties to that agreement. The court generally “does not have the power to add a party to a contract or [to] substitute parties to a contract.” 66 Am. Jur. 2d 297, Reformation of Instruments § 51 (2011). This is because someone who was not involved in the formation of an agreement could not have reached a “meeting of the minds” that would conflict with the writing memorializing the intended agreement, and, therefore, there could not be any mistake amenable to reformation. See Hoffman v. Fidelity & Casualty Co., supra, 125 Conn. 443.

In the present case, the plaintiff sought to reform the mortgage not to correct an errant description of the subject property—a common reason to reform a mortgage or deed—or some other technical defect in the memorialization of the transaction between ABC and Perez, but rather to bind Shaw and her interests to the terms of the mortgage. To do so would have required presentation of clear, substantial and convincing evidence that Shaw in fact was a party to the mortgage transaction and intended to be a signatory to the mortgage. For example, there needed to be some evidence that she had signed the loan application or was present and participated in the execution of the mortgage, or that there were blank signature lines on the prepared mortgage documents bearing her name. Such evidence might have been sufficient to support a finding that she actually was a party to the mortgage who, by mutual mistake, simply failed to execute the intended mortgage. There was no such evidence before the court in the present case; in fact, the evidence and findings of the court strongly suggested that Shaw was not involved in this particular mortgage transaction. Without clear, substantial and convincing evidence to support the court’s decision to reform the mortgage, the reformation cannot stand. The court exceeded its equitable authority in reforming the mortgage on the basis of the record before it. Further, because the court foreclosed on what we have determined is an erroneously reformed mortgage, we necessarily must also reverse in part the court’s judgment of strict foreclosure.

The judgment is reversed in part and the case is remanded with direction to render judgment in favor of the defendants on the reformation count, and in favor of Shaw on the foreclosure count. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       In addition to Perez and Shaw, National City Bank was also a defendant in the foreclosure action by virtue of a mortgage interest it held that allegedly was subsequent in right to the plaintiff’s mortgage. National City Bank was defaulted by the trial court for failing to file an appearance, and it is not a participant in the present appeal. Accordingly, we will refer in this opinion to Perez and Shaw collectively as the defendants.

       The mortgage note originally was executed in favor of American Brokers Conduit (ABC), and the mortgage originally was executed in favor of Mortgage Electronic Registration Systems, Inc., as nominee for ABC. The mortgage and note were later assigned to the plaintiff.

       The deed was recorded on the land records on January 17, 2006.

       The counterclaim was withdrawn prior to trial.

       As the defendants argue, Perez lacked the authority as a cotenant unilaterally to mortgage Shaw’s interest in the subject property; see Ianotti v. Ciccio, 219 Conn. 36, 41, 591 A.2d 797 (1991); and therefore the court’s focus on whether ABC and Perez intended that Shaw be bound by their mortgage agreement was too limited an inquiry.

       The plaintiff argues as an alternate ground for affirming the court’s judgment that there was no delivery and acceptance of the quitclaim deed from Perez to Shaw and, thus, that the mortgage executed solely by Perez conveyed a valid and complete security interest in the subject property absent reformation of the mortgage. “The delivery of the deed to, and its acceptance by, the grantee are essentials of every valid conveyance of real estate. . . . Delivery is a matter of intention proved by act or word. Similarly, proof of acceptance may be by any act or expression which shows an intention on the part of the grantee to assent or consent to the grant.” (Citation omitted.) Wiley v. London & Lancashire Fire Ins. Co., 89 Conn. 35, 39, 92 A. 678 (1914). The plaintiff made this alternative argument in its posttrial motion for leave to amend the complaint to conform to the evidence, which motion the court stated there was “no need to adjudicate” in light of its decision to reform the mortgage to include Shaw’s one-half interest in the subject property. The plaintiff filed a motion for articulation asking the court, inter alia, to articulate whether it had determined “if [Shaw] accepted the deed that purported to convey title to the subject property from [Perez] to [Perez] and [Shaw].” The court denied the motion for articulation without comment and, upon review, this court denied the plaintiffs request that we order the court to articulate. Whether a deed has been delivered and accepted presents questions of fact for the trier. See Kimball v. Hutchins, 3 Conn. 450, 452 (1820); McCook v. Coutu, 31 Conn. App. 696, 701, 626 A.2d 1321, cert. denied, 227 Conn. 911, 632 A.2d 692 (1993). In the present case, it is implicit within the court’s express factual findings—that Shaw had an ownership interest in the property, that she was aware of the conveyance from Perez, that she had executed another mortgage with Perez and that the conveyance from Perez properly was recorded on the land records— that the court necessarily found that there had been proper delivery and acceptance of the deed from Perez to Shaw. The plaintiff has provided no basis for us to conclude that the court’s findings, implicit or otherwise, were clearly erroneous, and, accordingly, we find no merit in the plaintiffs alternate ground for affirmance.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. HECTOR PEREZ
    (AC 34557)
    Beach, Bear and Peters, Js.

      Argued October 18
    officially released December 3, 2013

      Antigone Curis, certified legal intern, with whom was Alice Osedach, assistant public defender, for the appellant (defendant).

      Sarah Hanna, assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Chris A. Pelosi, senior assistant state’s attorney, for the appellee (state).
   Opinion

PETERS, J.

The principal issue in this criminal appeal is whether the trial court properly concluded that the dry firing of a handgun is sufficient evidence to show its operability for the purpose of satisfying the elements of the crime of criminal possession of a firearm under General Statutes § 53a-217 (a) (l). Secondarily, we must decide whether the trial court properly invited the state to reopen its case when the state neglected to qualify a witness as an expert. On both issues, we agree with the trial court’s rulings and therefore affirm its judgment finding the defendant guilty as charged.

In a three count information dated October 25, 2011, the state charged the defendant, Hector Perez, with criminal possession of a firearm in violation of § 53a-217 (a) (1), carrying a pistol or revolver without a permit in violation of General Statutes § 29-35 (a), and interfering with an officer in violation of General Statutes § 53a-167a. The defendant entered a plea of not guilty and elected to be tried by the court on the charge of criminal possession of a firearm and by a jury on the remaining charges. Following trial, the court and the jury found the defendant guilty on all counts. The defendant has appealed from the judgment of conviction for criminal possession of a firearm.

The court reasonably could have found the following facts. On July 1, 2010, Officers Douglas Antuna and Jarrett Himter responded to a complaint about the unauthorized presence of three Hispanic males at an apartment building in Hartford. The two officers arrived at the apartment building and they observed three men, including the defendant, at the entrance. When the officers exited their vehicle, the men noticed them and entered one of the apartments. The officers left the scene and returned twice, first in an unmarked car to conduct surveillance and a second time in a police cruiser to confront the men. On the second trip, when the officers found the men again at the entrance, they quickly exited the cruiser and chased the men into the building. While pursuing the men, Officer Antuna noticed that the defendant was carrying a silver and brown handgun in his waistband. The men entered the same apartment as they had entered previously, and the officers followed. The men fled out the back of the apartment and later were detained by assisting officers who had been positioned to prevent the men from escaping. The defendant no longer was carrying a weapon at the time he was detained.

Officer Antuna subsequently obtained permission from the apartment’s owner to search the premises. During the search, the officer found a .38 caliber revolver in a closet that he recognized as the silver and brown handgun previously carried by the defendant. The officer removed the ammunition from the loaded gun and dry fired it—squeezing the trigger and activating the hammer, to ensure that it was in working condition. The officer observed that the handgun was operable.

At trial, the state presented as a witness James Stephenson, a state forensic examiner specializing in firearms. He had examined the defendant’s gun on October 26, 2011, sixteen months after it had been seized by the police. He found that the gun was not operable at that time due to being “gummed up by a residue in the . . . cylinder pin.” He was able to restore the gun to operability by applying a small amount of common lubricant. He testified that the gun could have become inoperable at some time between the date it was collected from the apartment and the date it was examined. During this testimony, Stephenson never testified about his credentials as an expert.

Following the testimony of Stephenson and an additional expert, the state rested. The defendant then made a motion for a judgment of acquittal and a motion for dismissal as to the charge of criminal possession of a firearm on the basis that there was insufficient evidence to establish beyond a reasonable doubt that the gun has been operable at the time the defendant allegedly possessed it. The court denied the motions. The defense then rested. At that point, the court, sua sponte, invited the state to reopen its case in order to qualify Stephenson as an expert. The court stated that it was “considering the basic precepts of our system, that is, fairness” and “doing this in fairness because . . . Stephenson has been qualified as an expert dozens of times.” The court indicated that additional testimony was necessary to give a properjury instruction on expert witness testimony. The defendant objected. The state then reopened its case and again called Stephenson as a witness, who testified as to his credentials as an expert.

In his appeal, the defendant raises two arguments. He challenges (1) the sufficiency of the evidence to establish that the defendant’s gun was operable at the time of possession and (2) the propriety of the trial court’s invitation to the state to reopen its case in order to qualify one of its experts. We reject both claims and affirm the judgment of the trial court.

I

The defendant first claims that the state failed to present sufficient evidence to establish the operability of his gun, a necessary element of the crime of criminal possession of a firearm. We disagree.

“In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [trier] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Brown, 299 Conn. 640, 646-47, 11 A.3d 663 (2011).

“[A]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [trier’s] verdict of guilty. . . . Furthermore, [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . . [I]n responding to a claim of evidentiary insufficiency . . . we view all of the evidence, and the reasonable inferences drawable therefrom, in favor of the [trier’s] verdict.” (Citations omitted; internal quotation marks omitted.) State v. Morelli, 293 Conn. 147, 152-63, 976 A.2d 678 (2009).

To prove the crime of criminal possession of a firearm, the state must demonstrate, among other things, that the instrumentality in the defendant’s possession was a firearm under the statutory definition. State v. Sherman, 127 Conn. App. 377, 396-97, 13 A.3d 1138 (2011). “A firearm is defined as any sawed-off shotgun, machine gun, rifle, shotgun, pistol, revolver or other weapon, whether loaded or unloaded from which a shot may be discharged . . . .” (Emphasis in original; internal quotation marks omitted.) Id., 395, quoting General Statutes § 53a-3 (19). “Whether a firearm is one from which a shot may be discharged can be inferred from all of the facts and need not be established beyond a reasonable doubt by direct evidence but may be established by circumstantial evidence.” State v. Carpenter, 19 Conn. App. 48, 59-60, 562 A.2d 35, cert. denied, 213 Conn. 804, 567 A.2d 834 (1989).

In this case, the fact that the. responding officer dry fired the gun and observed that its firing mechanism was functional shortly after the defendant possessed it was strong evidence of its operability. Although the gun was not operable when the forensic examiner later tested it, this test did not occur until well over a year after the gun was initially seized. On the basis of the responding officer’s observation of operability and the examiner’s testimony that the gun could have become inoperable during that time period, the court reasonably could have found that it was operable at the time the defendant possessed it. Viewing the evidence in the light most favorable to sustaining the verdict, we conclude that the court reasonably found the state to have proven the element of operability.

II

The defendant next claims that his due process rights were violated when the court improperly invited the state to reopen its case and qualify the forensic examiner as an expert. We disagree.

“The principles guiding a trial judge in conducting a criminal trial are well established. Due process requires that a criminal defendant be given a fair trial before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm. ... In a criminal trial, the judge is more than a mere moderator of the proceed-mgs. It is his responsibility to have the trial conducted in a manner which approaches an atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding. . . . Consistent with his neutral role, the trial judge is free to question witnesses or otherwise intervene in a case in an effort to clarify testimony and assist the jury in understanding the evidence so long as he does not appear partisan in doing so. . . . Even though a judge may take all reasonable steps necessary for the orderly progress of the trial, he must always be cautious and circumspect in his language and conduct. . . . Any claim that the trial judge crossed the line between impartiality and advocacy is subject to harmless error analysis.” (Citations omitted; internal quotation marks omitted.) State v. Lopes, 78 Conn. App. 264, 274-76, 826 A.2d 1238, cert. denied, 266 Conn. 902, 832 A.2d 66 (2003).

In this case, the record reflects that Stephenson was testifying in his capacity as an expert on firearms. Defense counsel did not object when the state asked for Stephenson’s opinion on the issue of operability and both parties treated Stephenson'in the same way as the state’s next witness, a state DNA analyst, whom the state properly qualified as an expert. Thus, when the court offered the state an opportunity to reopen the case and formally qualify Stephenson, it was not an attempt to aid the prosecution, but merely to rectify an oversight so that the jury could be properly instructed on the role of expert testimony. It certainly did not amount to “tilting the balance against the accused and plac[ing] the judge . . . on the side of the prosecution.” (Internal quotation marks omitted.) State v. Peloso, 109 Conn. App. 477, 492, 952 A.2d 826 (2008).

This case can readily be distinguished from State v. Allen, 205 Conn. 370, 385, 533 A.2d 559 (1987), in which our Supreme Court held that atrial court judge allowing the state to reopen its case was an abuse of discretion when the state had failed to make a prima facie case and the defendant identified specific evidentiary gaps in a motion for judgment of acquittal. In the present case, in his motion for judgment of acquittal, the defendant did not point out any specific deficiencies in the state’s case outside of a general statement that the evidence was insufficient to show operability and did not mention that Stephenson had not been qualified as an expert. Further, the state’s failure to qualify Stephenson would not necessarily have precluded a jury instruction containing reference to Stephenson as an expert, as the defense did not object to the witness’ testimony setting forth his expert opinions. See State v. Heriberto M., 116 Conn. App. 635, 643-46, 976 A.2d 804, cert. denied, 293 Conn. 936, 981 A.2d 1080 (2009). Finally, any jnry instructions as to Stephenson’s status as an expert were insignificant to the conviction for criminal possession of a firearm that is challenged on appeal, as that charge was decided by the court and not the jury.

In sum, we conclude that the evidence was sufficient to support a finding that the defendant’s gun was operable and that the court did not act improperly in inviting the state to reopen its case for the purpose of formally qualifying Stephenson as an expert in light of his expert testimony to which the defendant had not objected.

The judgment is affirmed.

In this opinion the other judges concurred.

       Dry firing is the act of pulling the trigger of an unloaded gun in order to test the functionality of the gun’s mechanisms without firing a shot.

       General Statutes § 53a-217 (a) provides in relevant part: “A person is guilty of criminal possession of a firearm . . . when such person possesses a firearm . . . and (1) has [previously] been convicted of a felony . . . ."

       General Statutes § 29-35 (a) provides in relevant part: “No person shall carry any pistol or revolver upon his or her person, except when such person is within the dwelling house or place of business of such person, without a permit to carry the same . . . .”

       General Statutes § 53a-167a (a) provides in relevant part: “A person is guilty of interfering with an officer when such person obstructs, resists, hinders or endangers any peace officer ... in the performance of such peace officer’s . . . duties.”

       Although Stephenson’s expert testimony related exclusively to the firearm possession charge before the court, the court appears to have been under the impression that the jury would be the finder of fact for that charge as well. Any confusion in that regard was resolved, as the court ultimately decided the criminal possession charge.


author: ALVORD, J.

text:
    ELIZABETH MUNRO v. SERGIO MUNOZ
    (AC 35115)
    Beach, Alvord and Bear, Js.
    Argued September 24
    officially released December 3, 2013

      Elizabeth Lovering, self-represented, the appellant (plaintiff).

      Anthony M. Solomine, with whom was Alison Slater Broad, for the appellee (defendant).

      Martha Anne Wieler, for the guardian ad litem for the minor children.
   Opinion

ALVORD, J.

The plaintiff, Elizabeth Munro, appeals from the judgment of the trial court denying her motion for counsel fees and other costs incurred as the result of the emergency ex parte motion for sole legal and physical custody of the parties’ minor children filed by her former husband, the defendant, Sergio Munoz. On appeal, the plaintiffs claims can be stated as follows: (1) the trial court abused its discretion by sustaining the defendant’s objection to the admission of nonfinancial evidence, thereby preventing the plaintiff from introducing any evidence to meet her burden of proof as to her claim that the defendant’s emergency ex parte change of custody motion was filed in bad faith; and (2) the trial court’s finding that the emergency ex parte change of custody motion was filed in good faith was clearly erroneous. We agree and therefore reverse the judgment and remand the case to the trial court for a new hearing on the plaintiffs motion for counsel fees and other costs.

The record reveals the following facts and procedural history. The plaintiff and the defendant were married in California in 1994. Two children were bom of the marriage, in 1996 and in 2001. Thereafter, the family moved to Connecticut. The plaintiff filed her dissolution complaint on August 8,2003, and, following a contested healing, the court rendered judgment dissolving the marriage on April 8,2005. The court issued a wide range of orders in connection with the dissolution judgment, including granting the parties joint legal custody of the children, awarding the plaintiff physical custody and the defendant “reasonable and liberal parenting time.” The parties’ dissolution judgment was modified in July, 2005, to allow the children to temporarily relocate to Paris, France, with the plaintiff, and again in August, 2007, to permit the children to relocate to Houston, Texas, with the plaintiff.

On July 26, 2011, several weeks into the children’s Connecticut summer vacation time with the defendant and less than two weeks before their scheduled return to Texas for the start of the school year, the defendant filed an emergency ex parte motion seeking sole legal and physical custody of the children. The emergency ex parte motion included a request that the plaintiff have no contact with the children. The court, Abery-Wetstone, J., granted the defendant’s motion in part, but modified its suggested orders such that (1) the emergency change of custody was granted pending “further order of the court,” and (2) supervised telephonic and physical contact between the plaintiff and the children was ordered by the court.

The plaintiff immediately travelled from Texas to Connecticut with her newborn son and, on August 10, 2011, she filed a responsive emergency ex parte motion seeking the appointment of a guardian ad litem for the children and the provision of a visitation schedule and a third party supervisor. The court, Abery-Wetstone, J., granted the plaintiffs motion on the same day it was filed and appointed a guardian ad litem for the children. The court also ordered an access schedule between the plaintiff and the children, to be supervised by either of the two professional supervisors suggested by the plaintiff. The parties entered into an agreement on August 17, 2011, which vacated the July 26, 2011 emergency ex parte order for sole legal and physical custody,. and reinstated the earlier long-standing order that the parties have joint legal custody of the children, with primary residence and final decision making authority resting with the plaintiff. Additional provisions were added to the agreement, including that the guardian ad litem monitor the case for one year, and that both parties, as well as the children, engage in individual counseling with a therapist selected by the guardian ad litem.

On July 10, 2012, the plaintiff refiled a motion for “counsel fees, costs, and the visitation supervisor fees, as the defendant filed for relief on July 26, 2011, ex parte, and obtained an order for sole legal and physical custody of the minor children on an emergency basis.” She requested that the court “find the allegations made by the defendant as to the plaintiffs parenting are without merit; were not an emergency; were designed only to harass, annoy, and embarrass the plaintiff and to put her to tremendous financial expense.” A two day hearing was held on the motion on September 25 and 28, 2012, before the court, Gould, J., which denied the motion, ruling from the bench at the conclusion of the hearing on September 28, 2012, and following up with a written order issued that day.

In its order denying the plaintiffs motion for counsel fees, costs, and the visitation supervisor fees, the trial court took “judicial notice of all motions and decisions filed on or about July 26, 2011.” The court found that “the fees and costs testified to were reasonable,” and that “based upon a preponderance of evidence . . . the defendant filed motions in good faith.” The court further found that “the defendant did not file motions to harass or annoy the plaintiff.” The court made “no finding of abuse of process by the defendant.” This appeal followed.

I

We first address the plaintiffs claim that the trial court abused its discretion by sustaining the defendant’s objection to the admission of nonfinancial evidence, thereby preventing the plaintiff from introducing any evidence to meet her burden of proof as to her claim that the defendant’s emergency ex parte motion was filed in bad faith. We agree.

“[T]he common law rule in Connecticut, also known as the American Rule, is that attorney’s fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception.” (Internal quotation marks omitted.) Berzins v. Berzins, 306 Conn. 651, 661, 51 A.3d 941 (2012). “Th[is] rule does not apply, however, where the opposing party has acted in bad faith. ... It is generally accepted that the court has the inherent authority to assess attorney’s fees when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons. . . . This bad faith exception applies, not only to the filing of an action, but also in the conduct of the litigation. . . . Moreover, the trial court must make a specific finding as to whether counsel’s [or a party’s] conduct . . . constituted or was tantamount to bad faith, a finding that would have to precede any sanction under the court’s inherent powers to impose attorney’s fees for engaging in bad faith litigation practices.” (Citations omitted; internal quotation marks omitted.) Maris v. McGrath, 269 Conn. 834, 844-45, 850 A.2d 133 (2004).

The abuse of discretion standard of review applies when reviewing a trial court’s decision to deny an award of attorney’s fees. See Broadnax v. New Haven, 270 Conn. 133, 178, 851 A.2d 1113 (2004). “Under the abuse of discretion standard of review, [w]e will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” (Internal quotation marks omitted.) LaBossiere v. Jones, 117 Conn. App. 211, 221, 979 A.2d 522 (2009). “[Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Internal quotation marks omitted.) Milford Bank v. Phoenix Contracting Group, Inc., 143 Conn. App. 519, 532-33, 72 A.3d 55 (2013).

The following additional facts are relevant to our resolution of this claim. During the plaintiffs examination of her first witness, one of the two visitation supervisors appointed by the court on August 10, 2011, the defendant’s counsel objected to the plaintiffs question “[a]nd how many cases have [you] worked with” by stating, “I think that we’re just having this woman testify as to her bills. I thought that’s what it was. I don’t think we’re retrying the issues here.” Following a colloquy between the court and the plaintiff, the defendant reiterated his objection by stating, “I think that if there was an issue that it should have been raised, they should have raised that issue at the time of appointing her or shortly thereafter.” The court then ruled: “All right, looking back at the motion that is in front of us today . . . [it] is a motion for counsel fees and costs. The claim being made by the plaintiff is that she’s entitled to reimbursement for counsel fees, costs, and visitor supervision fees as a result of an order obtained on or about July 26, 2011, ex parte on behalf of the defendant. The motion goes on to state that the allegations of the plaintiffs parenting were without merit, were not an emergency, designed to harass, annoy, and embarrass the plaintiff and put her to tremendous financial expense. The court reads the motion as a request for either payment and or reimbursement of counsel fees or costs. Therefore, I will limit this witness’ testimony to the amount of the bills that are being claimed. The objection is sustained in part.” The plaintiff persisted in seeking to introduce evidence regarding the legitimacy of the defendant’s claim and the issue of bad faith through another witness, but the court reiterated its ruling that there were no issues before the tribunal beyond the dollar amount of the bills.

“To ensure . . . that fear of an award of attorneys’ fees against them will not deter persons with colorable claims from pursuing those claims, we have declined to uphold awards under the bad-faith exception absent both clear evidence that the challenged actions are entirely without color and [are taken] for reasons of harassment or delay or for other improper purposes . . . and a high degree of specificity in the factual findings of [the] lower courts.” (Internal quotation marks omitted.) Maris v. McGrath, supra, 269 Conn. 845. Accordingly, when determining whether the bad faith exception applies, “the court must assess whether there has been substantive bad faith as exhibited by, for example, a party’s use of oppressive tactics or its wilful violations of court orders; [t]he appropriate focus for the court ... is the conduct of the party in instigating or maintaining the litigation.” (Internal quotation marks omitted.) Id., 845-46. “Maris makes clear that in order to impose sanctions pursuant to its inherent authority, the trial court must find both that the litigant’s claims were entirely without color and that the litigant acted in bad faith.” (Emphasis in original.) Berzins v. Berzins, supra, 306 Conn. 663.

We conclude that the trial court in the present case abused its discretion by sustaining the defendant’s objection and thus limiting witness testimony to the dollar amount of the bills being claimed. In order to make a determination regarding whether Maris applied, the court had to find both that the defendant’s claims were entirely without color, and that he acted in bad faith. As a result of its ruling on the defendant’s objection, however, the trial court precluded all evidence on this subject. Accordingly, we conclude that the ruling on the defendant’s objection constituted an abuse of discretion, and we remand the case to the trial court for a hearing on whether the plaintiff is entitled to counsel fees and other costs under the bad faith exception.

II

Next, we address the plaintiffs argument that the trial court’s finding that the emergency ex parte change of custody motion was filed in good faith was clearly erroneous. We agree with the plaintiff.

We begin with the standard of review. “Whether a party has acted in bad faith is a question of fact, subject to review only for clear error.” Renaissance Management Co. v. Connecticut Housing Finance Authority, 281 Conn. 227, 240, 915 A.2d 290 (2007). “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Hibbard v. Hibbard, 139 Conn. App. 10, 21-22, 55 A.3d 301 (2012).

As we have previously established, the court limited the witnesses’ testimony to the amount of the bills. On its face, the plaintiffs allegation of bad faith in her motion for counsel fees and other costs presented the court with disputed issues of fact concerning the defendant’s conduct and intent in filing the emergency ex parte change of custody motion. The court, however, did not allow the plaintiff to present evidence on the issue of bad faith.. Instead, the court simply relied on the “motions and the decisions that have been filed by the court as well as the agreements that have been reached by the parties resulting from the filing of these motions” in reaching its decision to deny the plaintiffs motion and in its finding that the defendant “filed motions in good faith.” The corurt’s refusal to permit testimony beyond the scope of the amount of bills limited the record in such a way that prevented any evidence of bad faith from being admitted. Accordingly, because the court failed to conduct a hearing on the issue of bad faith, it is impossible to determine whether the defendant had a good faith basis for seeking the emergency ex parte motion. We therefore conclude that it was clearly erroneous for the trial court to find that the defendant filed his emergency ex parte change of custody motion in good faith.

The trial court already has expended significant judicial resources on the determination of the amount of and reasonableness of the counsel fees and other costs in this case, and found that “the fees and costs testified to were reasonable.” Neither party has challenged this finding on appeal. Accordingly, we reverse the judgment and remand this case exclusively for a hearing on the issue of whether the plaintiff may recover her counsel fees and costs under the bad faith exception to the American rule.

The judgment denying the plaintiffs motion for counsel fees and costs is reversed and the case is remanded for a new hearing on the plaintiffs motion consistent with this opinion.

In this opinion the other judges concurred.

       The emergency ex parte motion included various allegations of misconduct, ranging from food deprivation to physical abuse. The defendant asserted that the misconduct had occurred “[o]ver the last few years” but had “escalated in the past year.” The defendant stated that he previously had “tried to report these incidents to [the] Connecticut [Department of Children and Families] and [the] Texas [C]hild [Protective [S]ervices,” but that he was “without success.”

       In her affidavit, the plaintiff asserts that her son was bom on July 3, 2011, the day after the parties’ children arrived in Connecticut, and that she was required to travel by car because the infant was too young to be permitted to fly.

       In her responsive emergency ex parte motion, the plaintiff stated that the defendant first informed her on August 3, 2011, four days before the children were scheduled to return to Texas, that he had filed “ ‘some motions,’ ” without any further explanation. The plaintiff asserted that the defendant’s claims were without merit, and it was “imperative to the best interest[s] of the children” that the matter be resolved quickly.

       The guardian ad litem filed a statement in the present case “adopt[ing] the legal arguments set forth in the [plaintiffs] brief . . . .” The guardian ad litem and his attorney also appeared at oral argument before this court and reaffirmed that the guardian ad litem adopted the plaintiffs position.

       The plaintiff brought the July 10, 2012 motion and this appeal of the court’s denial of the motion as a self-represented party. During the proceedings resulting from the defendant’s emergency ex parte motion for sole legal and physical custody, the plaintiff was represented by counsel. Her attorney filed an earlier motion with an itemized fee affidavit for counsel fees and costs on her behalf on August 16, 2011. The plaintiff represented to the trial court that when the August 17,2011 agreement was signed, it was specifically understood that she would “lay the [August 16 motion for counsel fees] down for another day” because there was not enough time to address the issue before the plaintiff returned to Texas with the children.

       This exchange occurred as follows:
      “[The Plaintiff]: That’s what?
      “The Court: Is that what we’ve got, ma’am?
      “[The Plaintiff]: I didn’t hear the—
      “The Court: The objection was if this witness is called to testify as to her bills?
      “ [The Plaintiff]: No, she’s not just called to testify about the bills, not at all.
      “The Court: All right, the claim that is being made here is for attorney’s fees and for various bills, as I recall.
      “[The Plaintiff]: Yes.
      “The Court: What other purpose is she being called for?
      “[The Plaintiff]: Just to validate that there should have never been any concerns with interaction with the children. That the supervision was unnecessary."

       The court’s response to the plaintiff calling the guardian ad litem as a witness was as follows:
      “The Court: All right, you’ll be offering [the guardian ad litem] in terms of other fees and expenses?
      “[The Plaintiff]: Fees and expenses and the legitimacy of the claim.
      “The Court: All right, we’re not—that’s already been ruled upon. I’ll rule, again, if and when he’s on the stand on that issue. We’re solely dealing with amounts of bills here today. All right, do you anticipate [the guardian ad litem’s] testimony to be relatively brief. I’m not holding you to anything, I’m just asking.
      “[The Plaintiff]: No.
      “The Court: No. All right, what time frame—■
      “[The Plaintiff]: Well, relatively, but not—
      “The Court: Well you’re going to ask him about his bills, right?
      “[The Plaintiff]: Yes. I mean, I could ask him about his bills now and then if we’re going into other issues—
      “The Court: Well, as I’ve already ruled, ma’am, there are not any other issues in front of the court today other than the bills.”

       “As applied to a party, rather than to his attorney, a claim is colorable for purposes of the bad faith exception to the American rule, if a reasonable person, given his or her [firsthand] knowledge of the underlying matter, could have concluded that the facts supporting the claim might have been established.” (Internal quotation marks omitted.) Maris v. McGrath, supra, 269 Conn. 847.

       We note that a litigant seeking an award of attorney’s fees for the bad faith conduct of the opposing party faces a high hurdle. Berzins v. Berzins, supra, 306 Conn. 662. Nevertheless, the plaintiff is entitled to an opportunity to present her argument and evidence.

       We further note that the court improperly terminated the hearing after the plaintiffs evidence, which the court limited to the dollar amount of the bills. At that juncture, the court informed the defendant that “based on the evidence the court has heard in this case, I do not see the necessity for you to call any witnesses.” The court clarified that it was “not going to prohibit [the defendant] from doing so, but [it] [did not] see the necessity for [the defendant] to do so.” Then the court promptly issued its oral decision, finding “by a preponderance of the evidence that the filing by the defendant . . . was done in good faith.”


text:
    JAMES WALKER v. DEPARTMENT OF CHILDREN AND FAMILIES
    (AC 34316)
    Lavine, Robinson and Alvord, Js.

      Argued October 9
    officially released December 3, 2013

      Josephine Smalls Miller, for the appellant (plaintiff).

      Peter M. Haberlandt, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Antoría D. Howard, assistant attorney general, for the appellee (defendant).
   Opinion

ALVORD, J.

In this employment discrimination case, the plaintiff, James Walker, appeals from the summary judgment rendered by the trial court in favor of the defendant, the Department of Children and Families (department). The plaintiff claims that the court improperly failed to conclude that there was a genuine issue of material fact with respect to his allegations that the department terminated his employment on the basis of his race, color and gender in violation of General Statutes § 46a-60 of the Connecticut Fair Employment Practices Act, General Statutes § 46a-51 et seq. We affirm the judgment of the trial court.

The following facts, as provided in the pleadings and the evidence submitted by the parties in support of the department’s motion for summary judgment and the plaintiffs opposition thereto, are relevant to the disposition of the plaintiffs appeal. The plaintiff, an African-American male, was hired by the department as a social worker on June 14, 2004. When hired, he was notified that he was required to successfully complete a ten month working test period that would end on May 1, 2005. Initially, he was assigned to a unit supervised by Dakibu Muley. He was not required to perform any court work related to his clients at that time. His first performance evaluation, dated August 30, 2004, was prepared by Muley and was generally favorable. In December, 2004, the plaintiff was transferred to a different unit supervised by Lisa Llanes. In addition to servicing children and families in need, the plaintiff now was required, inter alia, to prepare documents to be filed in court and to attend court proceedings. When the plaintiff began working in the new unit, Llanes advised him of the importance of being organized; preparing documents ahead of schedule so that they could be reviewed by her, the program supervisor and the department’s attorney prior to filing them in court; attending scheduled appearances in court; and time management. Llanes had “supervision meetings” with the plaintiff once a week.

On February 22, 2006, the plaintiff missed a permanency plan hearing scheduled before the court, Hon. Frederica S. Brenneman, judge trial referee, at the Superior Court for Juvenile Matters in New Haven. Judge Brenneman ordered that the worker assigned to the case, i.e., the plaintiff, submit a letter explaining his absence. In his letter in response to Judge Brenneman’s order, the plaintiff stated: “I apologize and I can’t offer an excuse for missing the court hearing .... I have implemented a system that will help me be better organized so this will not happen again.” Less than two weeks later, the plaintiff missed another court hearing scheduled for March 1,2006, again before Judge Brenne-man. Because of his absence, Judge Brenneman dismissed the department’s motion to modify protective supervision to commitment, and protective supervision of the child at issue was allowed to expire. Approximately one week later, the plaintiff failed to file in court a motion to maintain commitment and permanency plan that was due on March 9, 2005. Because the motion was not timely filed, the court, Turner, J., set a new deadline of March 10, 2006, and informed the department that it would be required to show cause why it should not be held in contempt if it failed to comply with the new deadline. The plaintiff was given a formal notice on March 17, 2005, regardiiig these incidents and, additionally, was advised that he had not been completing court documents in a timely manner to allow for review by his supervisors prior to filing in court. Despite the department’s admonitions, the plaintiff failed to provide Llanes with a revised termination of parental rights petition that was due on April 3, 2005. Llanes sent the plaintiff an e-mail on April 13, 2005, inquiring as to the status of that petition.

By letter dated April 29, 2005, the department terminated the plaintiff from his employment as a social worker. The letter provided as follows: “The purpose of this letter is to advise you that you are being dropped during your working test period as a Social Worker Trainee for the Department of Children and Families, effective May 13, 2006, close of business. This action is being taken based upon your less than satisfactory performance of your duties and responsibilities.” After exhausting the department’s internal procedures for review of his termination, the plaintiff commenced the present action claiming that he was “discriminatorily terminated” on the basis of his race, color and gender. In his two count complaint, the plaintiff alleged that (1) the “[department] applied a harsher standard of review to [the plaintiffs] job performance than to his nonblack and female counterparts,” (2) the “[department] provided additional assistance and guidance to [the plaintiffs] white counteiparts in order to help them become successful in their positions and to pass their working test periods,” and (3) the “[plaintiff] was not provided the same assistance and guidance.”

On July 8, 2011, the department filed a motion for summary judgment claiming that it was “entitled to a judgment as a matter of law because the plaintiff has failed to provide any evidence that would support his claims that he was discriminated against based on his race, color or gender.” Additionally, in support of its motion, the department filed a memorandum of law, two affidavits with attached exhibits, and portions of the plaintiffs deposition transcript. The plaintiff filed his opposition to the motion for summary judgment, together with his affidavit and attached exhibits, and included selected portions of his deposition transcript. The court heard argument on October 24, 2011.

The court issued its well reasoned and comprehensive memorandum of decision on January 26, 2012. The court concluded that the plaintiff failed to make a prima facie case of discrimination because he failed to establish that he was qualified for the position and performed the job satisfactorily, and he failed to demonstrate that the adverse action occurred under circumstances giving rise to an inference of discrimination. Further, the court determined that even if the plaintiff had established a prima facie case of discrimination, he failed to refute the department’s legitimate nondiscriminatory reason for terminating his employment under the burden shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). For those reasons, the court granted the department’s motion for summary judgment and rendered judgment in favor of the department. This appeal followed.

Our review of the trial court’s decision to grant the department’s motion for summary judgment is plenary. See Macellaio v. Newington Police Dept., 145 Conn. App. 426, 429, 75 A.3d 78 (2013). “The law governing summary judgment and the accompanying standard of review are well settled. Practice Book § [17-49] requires that judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A material fact is a fact that will make a difference in the result of the case. . . . The facts at issue are those alleged in the pleadings. . . .

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent. . . .

“The party opposing a motion for summary judgment must present evidence that demonstrates the existence of some disputed factual issue .... The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist. ... To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts . . . which contradict those stated in the movant’s affidavits and documents. . . . The opposing party to a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence.’'1 (Citation omitted; emphasis in original; internal quotation marks omitted.) Gianetti v. Health Net of Connecticut, Inc., 116 Conn. App. 459, 464-65, 976 A.2d 23 (2009).

“[Tjypically [demonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred. . . . Moreover, [t]o establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue. . . . Such assertions are insufficient regardless of whether they are contained in a complaint or a brief. . . . Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact. . . .

“Although the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion ... a party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.” (Citation omitted; internal quotation marks omitted.) Tuccio Development, Inc. v. Neumann, 111 Conn. App. 588, 594, 960 A.2d 1071 (2008). “Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment.” Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202-203, 663 A.2d 1001 (1995). “Requiring the nonmovant to produce such evidence does not shift the burden of proof. Rather, it ensures that the nonmovant has not raised a specious issue for the sole purpose of forcing the case to trial. See Farrell v. Farrell, 182 Conn. 34, 39, 438 A.2d 415 (1980) (‘[ijndeed, the whole summary judgment procedure would be defeated if, without any showing of evidence, a case could be forced to trial by a mere assertion that an issue exists’).” Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997).

In the present case, the plaintiff alleged in his complaint that the department unlawfully terminated him from employment during his working test period on the discriminatory basis of race, color and gender. The plaintiff alleged that the improper basis for his termination was evidenced by the department’s disparate treatment of him in comparison with his “nonblack and female counterparts.” He alleged that his work performance was subject to a harsher standard of review and that he was not provided with the same assistance and guidance as provided to his “white counterparts.”

In support of his claim of disparate treatment, the plaintiff averred in his affidavit: (1) Llanes “would have meetings with only the female members of the unit in her office”; (2) he believed those meetings were work related because “they would often carry work files and papers with them”; (3) the meetings “seemed to occur at least weekly”; (4) he “was never invited to sit in on any of these meetings”; (5) Llanes did not remind him of the court appearance on the day that he missed it and mentioned it only after the time had passed; (6) the court liaison person did not contact him immediately when he failed to appear in court even though that person had notified others when they had forgotten their court dates; (7) Llanes had “informed [him]” that a white family “probably did not accept [his] advice [about the need for drug treatment] because they found it difficult to take advice from a black male”; (8) the court work assigned to him “was pretty advanced for a new social worker”; and (9) a white female employee cursed a black supervisor and was not disciplined for the misconduct.

In the portions of his deposition transcript submitted with his opposition to the motion for summary judgment, the plaintiff recounted two additional incidents of alleged disparate treatment. He testified that he was asked once or twice to accompany a white female coworker to her home visits in a black urban area because she was concerned about her safety. He further testified that another white coworker, during that worker’s working test period, received assistance from his supervisor and other white coworkers when he became frustrated with the department’s computerized data system and indicated that he wanted to quit. When that coworker asked for additional assistance with the system, it was provided to him.

The trial court concluded that the plaintiff met only two of the four prongs necessary to establish his prima facie case of discrimination. See footnote 4 of this opinion. The court determined that the plaintiff was a member of a protected class because he is an African-American male (prong one). The court also determined that the plaintiff suffered an adverse employment action by virtue of his dismissal from employment (prong three). The court concluded, however, that the plaintiff had not established that he was qualified for his former position and had performed his duties satisfactorily (prong two), nor had he demonstrated that the adverse action occurred under circumstances giving rise to an inference of discrimination (prong four).

In its analysis of prong two, i.e., whether the plaintiff was qualified for the position of social worker, the court stated that the department had produced uncontra-dicted evidence that the plaintiff had been advised of his responsibilities concerning time management, attending scheduled court appearances and timely submitting documents to his supervisors for review prior to the court deadlines for filing those documents. Nevertheless, the plaintiff repeatedly failed to perform satisfactorily by missing court appearances, failing to file a motion in court on the designated day, and failing to prepare his documents in time for review by his supervisors. These failures resulted in adverse consequences to the department. The plaintiff did not deny these incidents, and he gave no excuses, other than simply having forgotten the court dates or deadlines. Moreover, the plaintiffs deficiencies in performance occurred during his working test period. Permanent employment as a social worker was expressly conditioned on the successful completion of his ten month working test period.

With respect to the fourth prong to establish a prima facie case, i.e., the requirement to show that the adverse action occurred under circumstances giving rise to an inference of discrimination, the court determined that the plaintiffs claim of disparate treatment failed for lack of evidence. The court found that the plaintiff failed to provide information to show that the individuals that he claimed received preferential treatment were “similarly situated.” To support a claim of disparate treatment, a plaintiff “may present circumstantial evidence from which an inference may be drawn that similarly situated individuals were treated more favorably” than the plaintiff was treated. Paylan v. St. Mary’s Hospital Corp., 118 Conn. App. 258, 266, 983 A.2d 56 (2009). In this case, however, the court determined that the plaintiff failed to demonstrate that the other workers were (1) in their working test periods, (2) repeatedly had missed scheduled court dates or filing deadlines, or (3) were disciplined by the same supervisor. Additionally, the court concluded that the plaintiffs claim that other workers received assistance when he did not was severely undercut by his own admission that they had requested the help and he never did. Significantly, the court also noted that the plaintiff failed to provide information to show that he had personal knowledge of certain events that he claimed to be evidence of disparate treatment. On the basis of the record before the court, we conclude that the trial court correctly determined that there was insufficient evidence to show that the plaintiff and the comparators identified by the plaintiff were similarly situated. Accordingly, the court properly rendered summary judgment in favor of the department.

The judgment is affirmed.

In this opinion LAVINE, J., concurred.

ROBINSON, J., concurring. I concur in the result.

       The plaintiff timely filed a complaint of discrimination with the Commission on Human Eights and Opportunities (commission), and the commission issued a release of jurisdiction on August 28, 2007.

       “In reviewing the legal basis for summary judgment, this court properly may consider facts contained in the affidavits submitted in support of, or in opposition to, the motion.” Cogswell v. American Transit Ins. Co., 282 Conn. 505, 533, 923 A.2d 638 (2007).
      Practice Book § 17-46 provides that supporting and opposing affidavits “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto.”

       The record does not include the entire transcript of the plaintiffs deposition taken on April 14, 2011. In its appellate brief, the department represented that the plaintiff was the only person deposed during the pendency of this action. The plaintiff confirmed this fact at oral argument before this court.

       “[T]he analytical framework set forth by the United States Supreme Court in McDonnell Douglas Corp. v. Green, [supra, 411 U.S. 802] (McDonnell Douglas), and its progeny is used to determine whether a complainant may prevail on a claim of disparate treatment under our state law. See, e.g., Craine v. Trinity College, 259 Conn. 625, 636-37, 791 A.2d 518 (2002). ‘McDonnell Douglas and subsequent decisions have established an allocation of the burden of production and an order for the presentation of proof in . . . discriminatory-treatment cases. . . . First, the [complainant] must establish a prima facie case of discrimination. ... In order to establish a prima facie case, the complainant must prove that: (1) he is in the protected class; (2) he was qualified for the position; (3) he suffered an adverse employment action; and (4) that the adverse action occurred under circumstances giving rise to an inference of discrimination.’ . . . Board of Education v. Commission on Human Rights & Opportunities, 266 Conn. 492, 505, 832 A.2d 660 (2003). Once the prima facie case has been established, the employer must then produce legitimate, nondiscriminatory reasons for its adverse employment action. See, e.g., Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000). ‘This burden is one of production, not persuasion; it can involve no credibility assessment.’ ... Id. Once the employer produces legitimate, nondiscriminatory reasons for its adverse employment action, the complainant then must prove, by a preponderance of the evidence, that the employer intentionally discriminated against him. See, e.g., id., 143. ‘Although intermediate eviden-tiary burdens shift back and forth under this framework, [t]he ultimate burden of persuading the trier of fact that the [employer] intentionally discriminated against the [complainant] remains at all times with the [complainant], . . . [I]n attempting to satisfy this burden, the [complainant]— once the employer produces sufficient evidence to support a nondiscriminatory explanation for its decision—must be afforded the opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the [employer] were not its true reasons, but were a pretext for discrimination.’ . . . Id.” Dept. of Transportation v. Commission on Human Rights & Opportunities, 272 Conn. 457, 463 n.9, 863 A.2d 204 (2005).

       In the plaintiffs brief in opposition to the motion for summary judgment and during oral argument before this court, it was suggested that we should evaluate a court’s granting of a motion for summary judgment by the following standard set forth in a Rhode Island case: “A judge’s function when considering a summary judgment motion is not to cull out the weak cases from the herd of lawsuits waiting to be tried; rather, only if the case is dead on arrival, should the court take the drastic step of administering the last rites by granting summary judgment.” Mitchell v. Mitchell, 756 A.2d 179, 185 (R.I. 2000). Simply put, that is not the standard we employ in our review of summary judgments rendered by our trial courts. We follow the well established principles set forth in our rules of practice and appellate case law that support the granting of a motion for summary judgment under appropriate circumstances.

       “[Disparate treatment simply refers to those cases where certain individuals are treated differently than others. . . . The principal inquiry of a disparate treatment case is whether the plaintiff was subjected to different treatment because of his or her protected status.” (Citation omitted; internal quotation marks omitted.) Levy v. Commission on Human Rights & Opportunities, 236 Conn. 96, 104, 671 A.2d 349 (1996).
      “When a [complainant] alleges disparate treatment, liability depends on whether the protected trait. . . actually motivated the employer’s decision. . . . That is, the [complainant’s protected trait] must have actually played a role in [the employer’s decisionmaking] process and [have] had a determinative influence on the outcome.” (Internal quotation marks omitted.) Board of Education v. Commission on Human Rights & Opportunities, 266 Conn. 492, 505, 832 A.2d 660 (2003).

       The plaintiff claims that he relied not only on inferences of discrimination, but that he also presented the trial court with “direct evidence of discriminatory motivation” in connection with a particular conversation with Llanes. According to the plaintiff, he told Llanes that he had given advice regarding the need for drug treatment to a Caucasian family, and they refused to listen to that advice. Llanes allegedly told him that “the family probably did not accept my advice because they found it difficult to take advice from a black male.” The plaintiff claimed that Llanes remark constituted “a direct statement to him evidencing her racially discriminatory intent.”
      In its memorandum of decision, the court noted that the remark was addressed to the plaintiff’s experience in working with his clients, that his interaction with his clients was not the articulated reason for his termination, and that “evidence of this statement alone does not allow for the inference that the plaintiff was treated differently because of his race. The plaintiff . . . does not present any evidence showing that other individuals’ races and genders were not mentioned when evaluating client interactions.”
      We agree with the court that this single statement, which was the entirety of the plaintiff’s direct evidence of discriminatory motivation, is insufficient to raise a triable issue of discriminatory intent. No evidence was offered regarding the circumstances surrounding Llanes remark or the context in which it was given. The plaintiff did not depose Llanes, and he did not allege that he suffered any adverse consequences as a result of his interaction with that family. Without more, any inference of discriminatory intent would be based on nothing more than mere speculation or coiqecture.

       “A plaintiff may raise such an inference [of discrimination] by showing that the employer subjected him to disparate treatment, that is, treated him less favorably than a similarly situated employee outside his protected group.” Graham v. Long Island Rail Road, 230 F.3d 34, 39 (2d Cir. 2000).
      Although this case is based solely on Connecticut law, we use federal precedent concerning employment discrimination for guidance in our analysis of discrimination claims under the Connecticut Fair Employment Practices Act. See Levy v. Commission on Human Rights & Opportunities, 236 Conn. 96, 103, 671 A.2d 349 (1996).

       “[W]here a plaintiff seeks to establish the minimal prima facie case by making reference to the disparate treatment of other employees, those employees must have a situation sufficiently similar to plaintiff’s to support at least a minimal inference that the difference of treatment may be attributable to discrimination.” McGuinness v. Lincoln Hall, 263 F.3d 49, 54 (2d Cir. 2001).
      “When considering whether a plaintiff has raised an inference of discrimination by showing that she was subjected to disparate treatment, we have said that the plaintiff must show she was ‘similarly situated in all material respects’ to the individuals with whom she seeks to compare herself.” Graham v. Long Island Rail Road, 230 F.3d 34, 39 (2d Cir. 2000). “What constitutes ‘all material respects’ . . . varies somewhat from case to case and . . . must be judged based on (1) whether the plaintiff and those he maintains were similarly situated were subject to the same workplace standards and (2) whether the conduct for which the employer imposed discipline was of comparable seriousness. ... In other words, there should be an ‘objectively identifiable basis for comparability.’ . . . Hence, the standard for comparing conduct requires a reasonably close resemblance of the facts and circumstances of plaintiff’s and comparator’s cases, rather than a showing that both cases are identical.” (Citations omitted.) Id., 40.

       For example, the plaintiff claimed that Hanes met weekly with only the female members in the unit and that he thought that the meetings were work related because they carried work files with them. He admitted during his deposition, however, that he did not know whether they were in their working test periods. In his affidavit, he stated that he never was invited to attend those meetings, but he did not state that he requested to attend the meetings and was denied access. Furthermore, he acknowledged that he met with Hanes on a weekly basis, and the court determined that the evidence showed that the plaintiff received assistance with the organization of his computer files and calendar, and that he was given e-mail reminders of deadlines. We must conclude, therefore, that the plaintiff’s claim that Hanes excluded him from weekly work meetings with female staff members on the basis of his race, color and gender was nothing more than mere speculation or conjecture.

       “[W]hether two employees are similarly situated ordinarily presents a question of fact .... [However], a court can properly grant summary judgment [on a discrimination claim] where it is clear that no reasonable [fact finder] could find the similarly situated prong met.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Paylan v. St. Mary’s Hospital Corp., supra, 118 Conn. App. 268.

       In its memorandum of decision, the court noted that “[e]ven if the plaintiff had established a prima facie case of discrimination, there is no evidence that would refute the [department’s] legitimate nondiscriminatoiy reason for terminating the plaintiff, when employing the burden shifting scheme. . . . [T]he plaintiff failed to raise a triable issue of fact with regard to whether [the department’s] decision to terminate him during his work testing period because he performed below a satisfactory level was a pretext.” Our careful review of the record supports this determination of the trial court.