author: BEACH, J.

text:
    LONGVIEW ESTATES, LLC v. WILLIAM WOODIN ET AL.
    (AC 35383)
    Beach, Alvord and Flynn, Js.

      Argued December 4, 2013
    officially released April 22, 2014

      Richard S. Cody, for the appellant (town of Canterbury).

      Thomas T. Lonardo, with whom was Colin P. Mahon, for the appellee (plaintiff).
   Opinion

BEACH, J.

The town of Canterbury (town) appeals from the judgment of the trial court, which granted the motion of the plaintiff, Longview Estates, LLC (Long-view), to convey title to a certain mobile home pursuant to General Statutes § 21-80 (e). The town claims that the court erred in determining that statements made by Longview in its disclosure of defenses in a separate foreclosure action did not constitute a waiver of Long-view’s right in the present action to recoup the costs as a first priority from the sale of the mobile home pursuant to § 21-80 (e) (4). We affirm the judgment of the trial court.

In May, 2012, the town commenced an action to foreclose a tax lien against William Woodin and Melody Woodin (Woodins), the owners of a mobile home in Canterbury (foreclosure action). The town also named as a defendant Longview, which owned the mobile park in which the mobile home was located. In June, 2012, Longview filed a disclosure of defenses (disclosure) in the foreclosure action asserting that it was not properly a party to that action because the town was “attempting to foreclose a hen for unpaid taxes against a mobile home, in which [Longview] ha[d] no legal or equitable interest.” The town later withdrew its foreclosure action.

Meanwhile, in March, 2012, Longview served the Woodins with notices to quit possession of the mobile home by April 24, 2012, because of an alleged failure to pay rent for the underlying lot on which the mobile home was situated. In April, 2012, Longview commenced the present summary process action against the Woodins. Longview filed a motion for default for the Woodins’ failure to appear and a motion for judgment of possession, which motions were granted. In June, 2012, Longview sought an order of execution, which order was obtained June, 2012. On August 20, 2012, following the town’s withdrawal of its foreclosure action, Long-view filed a “petition for finding of abandonment and for order of public sale” of the mobile home. The petition stated that a judgment of possession had been rendered against the Woodins pursuant to § 21-80 and that for at least nine months no rent or other payment for use and occupancy had been received for the lot on which the mobile home was situated, and that the mobile home had been unoccupied since at least June 11, 2012. Longview requested the court to make a finding that the mobile home had been abandoned and to order that Longview may conduct a public sale of the mobile home. The town filed an objection to Long-view’s petition for an order of public sale to the extent that a sale would extinguish the town’s municipal real estate tax liens against the mobile home property. The town argued that Longview had waived its statutoiy right under § 21-80 (e) to sell the mobile home and potentially to extinguish municipal tax liens because it had judicially admitted in its disclosure of defenses in the foreclosure action that it “had no legal or equitable interest” in the mobile home.

In its memorandum of decision, the court found that Longview’s disclaimer in the foreclosure action did not constitute a waiver of Longview’s right to recover from the sale proceeds its costs arising from the sale of the mobile home. The court granted Longview’s petition for a finding of abandonment and for an order of public sale of the mobile home. A public sale of the mobile home was held on December 8, 2012. On December 24, 2012, pursuant to § 21-80 (e) (4), Longview filed a motion for conveyance of title and release of liens. On the same day, the court granted the motion, thus transferring title and, pursuant to § 21-80 (e) (4), releasing and extinguishing all liens encumbering the title to the mobile home. This appeal followed.

The town argues that the court erred in finding that there was no waiver because “when [Longview] unequivocally stated [in the tax hen foreclosure action] that it had ‘no legal or equitable interest’ in the mobile home, it could not have been more clear, nor more absolute. . . . ‘[N]o legal or equitable interest’ means no legal or equitable interest whatsoever . . . .” The town argues that trial court erred when it interpreted the phrase “no legal or equitable interest” in Longview’s disclosure to mean “no legal or equitable interest except the ‘right to recover its cost of selling the mobile home pursuant to § 21-80 (e).’ ” We conclude that the court correctly determined that Longview’s disclosure did not constitute a waiver of Longview’s right to recoup the cost of sale under § 21-80 (e) (4).

At the crux of the town’s claim are the interpretation and effect of Longview’s disclosure of defense. “The interpretation of pleadings is always a question of law for the court .... Our review of the trial court’s interpretation of the pleadings therefore is plenary. . . . [T]he modem trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically.” (Citation omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 536, 51 A.3d 367 (2012). “Waiver is the intentional relinquishment or abandonment of a known right or privilege. ... As a general rule . . . statutory . . . rights and privileges may be waived.” (Internal quotation marks omitted.) Hopkins v. Balachandran, 146 Conn. App. 44, 57, 76 A.3d 703 (2013).

Section 21-80 (e) (4) provides in relevant part that if the court determines that the prerequisites of the statute have been satisfied, including that the mobile manufactured home has been abandoned, then “the court shall order the owner of the mobile manufactured home park to conduct a public sale of the home. . . . [T]he sale will extinguish all previous ownership and lien rights. . . . The proceeds of such sale shall be applied first to the costs of the sale and then to the payment of lienhold-ers in the order of priority of their liens. If proceeds remain thereafter they shall be paid over to the owner of the mobile manufactured home. . . . The court, upon finding compliance with its order, shall issue a conveyance of title and release of liens, if any, to the purchaser for filing in the land records, which shall constitute good title to the home . . . .” (Emphasis added.)

“The plain meaning of the language of § 21-80 (e) (4) . . . clearly and unambiguously indicates that the legislature intended to provide the successful bidder at a public sale conducted pursuant to that statute with clear and good title to the abandoned mobile home, free from any and all encumbrances, including municipal tax liens.” Fairchild Heights, Inc. v. Amaro, 293 Conn. 1, 9-10, 976 A.2d 668 (2009). “[Section] 21-80 (e) was enacted, with broad support from the mobile manufactured home industry, consumer groups and municipalities, to address an increasing number of mobile homes that had been abandoned by their owners and left to decay in the park in which they were located, thereby deteriorating the condition of the park and decreasing the value of the other residents’ homes. . . . Prior to the enactment of § 21-80 (e), a park owner’s only legal remedy under such circumstances was to initiate a summary process action against the mobile home owner pursuant to General Statutes § 47a-23 et seq., and ultimately to move the mobile home to the street for removal by the municipality pursuant to General Statutes § 47a-42. . . . This process, however, was unwieldy and problematic, due in large part to the inability and unwillingness of many municipalities to remove and dispose of the abandoned mobile homes. . . . Accordingly, it is clear that § 21-80 (e) was enacted, as an alternative to the existing summary process eviction procedure, to create a process by which the home can be found to be abandoned, its sale permitted, and a clear title to the home can be obtained.” (Citations omitted; footnote omitted; internal quotation marks omitted.) Fairchild Heights, Inc. v. Amaro, supra, 12-14.

Longview’s disclosure of defense, in which it disclaimed “any legal or equitable interest” in the mobile home, was not inconsistent with its statutory ability under § 21-80 (e) (4) to recoup the costs of the public sale. Longview stated in the disclosure that “[the town] is attempting to foreclose a hen for unpaid taxes against a mobile home, in which [Longview] has no legal or equitable interest .... The taxes being foreclosed are assessed against the mobile home only, and are not a hen against the underlying lot or land owned by [Longview].” The expression of a lack of interest in the mobile home was made by Longview in the context of a foreclosure proceeding. Longview in fact did not have a hen on the mobile home. Longview’s disclosure in the foreclosure action had nothing to do with the later-arising cost of the sale in the § 21-80 (e) petition. The disclosure is given a realistic interpretation. See Grenier v. Commissioner of Transportation, supra, 306 Conn. 536 (pleadings are to be construed broadly and realistically). It disclaimed any interest in the home at the time of Longview’s disclosure in June, 2012, rather than any interest it may later acquire. As of June, 2012, the time of its disclosure, Longview had not yet incurred costs related to the pubhc sale. Longview did not file its petition for a finding of abandonment and pubhc sale until August, 2012. Any “interest” Longview had regarding the public sale of the mobile home neither existed nor was definitively known at the time of Long-view’s disclosure in the foreclosure case. The disclosure could not have constituted a waiver of its right to recoup the cost of the public sale because one can waive only a known right. See Bank of New York v. Bell, 120 Conn. App. 837, 853, 993 A.2d 1022 (“[w]aiver is the intentional relinquishment or abandonment of a known right” [internal quotation marks omitted]), appeal dismissed, 298 Conn. 917, 4 A.3d 1225 (2010). Additionally, Long-view’s cost of sale realistically did not constitute an interest in the mobile home in any sense material to this case. Therefore, its disclosure did not, and could not have constituted a waiver of its statutory privilege to collect the cost of sale. Further, Longview’s disclosure was made in the context of a separate action—a withdrawn foreclosure action—thus it was not binding in the present case; at most it was an evidential admission. See Ferreira v. Pringle, 255 Conn. 330, 345, 766 A.2d 400 (2001) (“statements in withdrawn . . . pleadings . . . may be considered as evidential admissions by the party making them” [emphasis omitted; internal quotation marks omitted]). The trial court clearly viewed the disclosure as not intending to waive any potential and presently inchoate rights to reimbursement for the cost of the sale.

The town also argues that there is a strong policy favoring the collection of municipal taxes. The plain language of § 21-80 (e) (4), however, sets the mobile park owner’s recoupment of the cost of sale as a priority over lienholders, including municipalities. “That is not to say that municipal tax liens that are subject to [General Statutes] § 12-172 lose their priority over other liens prior to their extinguishment [under § 21-80 (e) (4)]. In the event that there are proceeds left over from the sale after the costs have been paid, for example, municipal tax hens maintain their priority over other liens, and those proceeds must first be applied to satisfy any outstanding municipal tax hens. See General Statutes § 21-80 (e) (4) (‘[t]he proceeds of such sale shall be applied first to the costs of the sale and then to the payment of lienholders in the order of the priority of their hens’). When ... no proceeds are left over after the sale, however, the language of § 21-80 (e) (4) clearly and unambiguously provides that municipal tax hens are extinguished in the same manner as all other hens.” (Emphasis omitted.) Fairchild Heights, Inc. v. Amaro, supra, 293 Conn. 10 n.9.

For the foregoing reasons, the court properly determined that Longview’s statements in its disclosure in the foreclosure action did not constitute a waiver of its rights under § 21-80 (e) (4) to recoup the costs of a pubhc sale of the mobile home in the present action.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants, William Woodin and Melody Woodin, were the owners of the mobile home but are not parties to this appeal. Pursuant to § 21-80 (e) (3), the plaintiff sent notice of its petition for a finding of abandonment and for order of public sale to the town, Associated Dental Care, LLC, William W. Backus Hospital, Windham Hospital, and Midland Funding, LLC. Only the town appealed.

       The foreclosure complaint also named as defendants the following entities, which the town claimed had junior encumbrances: Associated Dental Care, LLC, William W. Backus Hospital, Windham Hospital, and Midland Funding, LLC.

       The town had named Longview as a defendant in the foreclosure complaint and alleged that Longview may have had a security interest in the mobile home; the complaint stated that Longview’s interest, as a junior encumbrancer, was the “[ijnterest, if any, of William C. Woodin and Melody A. Woodin in and to the Mobile Home Park known as Longview . . . ."

       Although not initially a party to the summary process action, the town received notice of the petition pursuant to § 21-80 (e) (3).

       Pursuant to § 21-80 (e) (4), the proceeds of such a sale are applied first to cover the costs of the sale, then to payment to lienholders in order of priority, and finally, if proceeds remain, to the owner of the mobile home. After the proceeds have been distributed, liens are extinguished. In the event that all of the proceeds cover only the cost of the sale, then, all liens would be extinguished without payment.

       The town makes additional arguments regarding, inter alia, its alleged reliance on the disclosure when withdrawing its foreclosure action, and certain findings and rationale of the court. These additional arguments are not material to the issue of waiver.


source: Caselaw Access Project

author: SHELDON, J.

license: Public Domain

text:
    MACDERMID, INC. v. COOKSON GROUP, PLC, ET AL.
    (AC 35541)
    Lavme, Sheldon and Pellegrino, Js.

      Argued January 9
    officially released April 22, 2014

      John R. Horvack, Jr., with whom, on the brief, were Fatima Lahnin and John L. Cordani, Jr., for the appellant (plaintiff.

      R. Bart Totten, pro hac vice, with whom was Nicole J. Benjamin, for the appellees (defendants).
   Opinion

SHELDON, J.

The plaintiff, MacDermid, Inc., appeals from the judgment of the trial court dismissing three counts of its complaint against the defendants, Cook-son Group, PLC, Cookson Electronics, Inc., and Enthone, Inc., on the basis of the prior pending action doctrine. Although the plaintiff has acknowledged that the allegations of its complaint in this action (MacDer-mid II) and the allegations of its complaint in an earlier action that is still pending (MacDermid I) are virtually alike, the plaintiff claims on appeal that the defendants should have been judicially estopped from seeking dismissal of its complaint in this action under the prior pending action doctrine. We agree and, accordingly, reverse the judgment of the trial court.

The following facts, as set forth by the trial court, are relevant to the plaintiffs claims on appeal. “MacDer-mid I was commenced by service of a writ, summons and complaint in June 2009. The operative complaint alleges that the Cookson defendants, direct competitors of [the plaintiff], breached two separate letter agreements, misappropriated trade secrets, committed computer crimes and violated [the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.], all in connection with the sale of [the plaintiffs] stock. In essence, the Cookson defendants are alleged to have submitted a competitive bid for the purchase of the stock with ill-gotten information when, in fact, they had no intention or ability to consummate any such purchase. As a result, the plaintiff alleges that the purchase price [of the stock] was increased causing the plaintiff to incur substantial debt and otherwise causing financial damage to the plaintiff.

“In February 2012, [the plaintiff] sought to amend its complaint in MacDermid I. The proposed amended complaint included allegations of tortious conduct by [the] Cookson [defendants], as well as ... a former employee of [the plaintiff], Terrence Copeland, who began working for the Cookson defendants, unbeknownst to [the plaintiff]. The amendment sought to add claims of fraud and tortious interference with business expectations in connection with the bid/buy out process. After extensive briefing and argument, the court, Dubay, J., denied the motion to amend, though it did not articulate the basis or reason for the decision. The plaintiff filed a motion for reconsideration and rear-gument, which the court, Dubay, J., denied.

“Thereafter, in August 2012, the plaintiff filed a[nother] motion to amend the [MacDermid i] complaint to include many of the same factual allegations [that] it sought to include in the February 2012 amendment, though espousing a different cause of action, an additional [breach of] contract claim, which did not implicate the statute of limitations. Th[e] court permitted the amendment. . . .

“After the court’s denial of the motion to reargue and for reconsideration of the February 2012 motion to amend, the plaintiff commenced this action, MacDer-mid II, alleging the same facts and causes of action it sought to include by way of amendment to MacDermid I, as well as repeating the breach of contract claims currently pending in MacDermid I. MacDermid II also includes a claim under Connecticut’s Uniform Securities Act, [(CUSA), General Statutes § 36b-2 et seq.]. At this juncture, there is no dispute as to the similarity of the allegations in MacDermid II and the amendment sought, though denied, in MacDermid I.” (Footnotes altered.)

Determining that the allegations in MacDermid II and the allegations in MacDermid I were virtually alike, the court went on to analyze and, ultimately, to reject, the plaintiffs equitable claims opposing the application of the prior pending action doctrine, including its claim of judicial estoppel. The plaintiff claimed that the defendants should be judicially estopped from seeking dismissal of its complaint in this action under the prior pending action doctrine because their argument in support of dismissal contradicts their prior successful argument in MacDermid I opposing the plaintiffs motion to amend its complaint in that action. The court disagreed and granted the defendants’ motion to dismiss. This appeal followed. Additional facts will be set forth as necessary.

“[T]he prior pending action doctrine permits the court to dismiss a second case that raises issues currently pending before the court. The pendency of a prior suit of the same character, between the same parties, brought to obtain the same end or object, is, at common law, good cause for abatement. It is so, because there cannot be any reason or necessity for bringing the second, and, therefore, it must be oppressive and vexatious. This is a rule of justice and equity, generally applicable, and always, where the two suits are virtually alike, and in the same jurisdiction. . . . The policy behind the doctrine is to prevent unnecessary litigation that places a burden on crowded court dockets.” (Citations omitted; internal quotation marks omitted.) Kleinman v. Chapnick, 140 Conn. App. 500, 505, 59 A.3d 373 (2013).

“[T]he trial court must determine in the first instance whether the two actions are: (1) exactly alike, i.e., for the same matter, cause and thing, or seeking the same remedy, and in the same jurisdiction; (2) virtually alike, i.e., brought to adjudicate the same underlying rights of the parties, but perhaps seeking different remedies; or (3) insufficiently similar to warrant the doctrine’s application. In order to determine whether the actions are virtually alike, we must examine the pleadings . . . to ascertain whether the actions are brought to adjudicate the same underlying rights of the parties. . . . The trial court’s conclusion on the similarities between the cases is subject to our plenary review. . . .

“Following that initial determination, the court must proceed to a second step. If the court has concluded that the cases are exactly alike or insufficiently similar, the court has no discretion; in the former situation, it must dismiss the second action, and in the latter, it must allow both cases to proceed. . . . Where actions are virtually, but not exactly alike, however, the trial court exercises discretion in determining whether the circumstances justify dismissal of the second action.” (Citations omitted; emphasis omitted; internal quotation marks omitted.) Id., 505-506.

Here, the trial court concluded that the first two counts of the MacDermid II complaint were identical to the first two counts of the MacDermid I complaint, and therefore that the dismissal of those counts was mandatory. The court further concluded, and the parties agreed, that the remaining three counts of the MacDer-mid II complaint, alleging fraud, tortious interference with business expectancies and violations of CUSA, and the claims brought and still pending in MacDermid I were virtually alike, and thus, in the exercise of its discretion, dismissed those counts as well. In so doing, the court concluded that MacDermid II was barred by the prior pending action doctrine and that the claims alleged therein could not be saved by the equitable arguments advanced by the plaintiff. Specifically, the court rejected the plaintiffs judicial estoppel argument, finding that “although the defendants’ arguments, at first blush, [seem] inconsistent, the issues argued at the two proceedings, being distinct, preclude a finding that [their position on the motion to dismiss in MacDermid II was inconsistent with their position on the earlier request to amend in MacDermid T\.” The court further determined that “there is no danger of inconsistent results impacting the integrity of the judiciary under the circumstances present here.”

As noted, the plaintiff does not challenge on appeal the dismissal of the first two counts of MacDermid II, but claims that the court abused its discretion in dismissing the three last counts of MacDermid II under the prior pending action doctrine because the defendants should be judicially estopped from pursuing dismissal under that doctrine. The plaintiff contends that the defendants should be judicially estopped from asserting the prior pending action doctrine because their argument in support of dismissal contradicts their prior successful argument in MacDermid I opposing the plaintiffs motion for leave to amend its complaint. We agree.

“[J]udicial estoppel prevents a party in a legal proceeding from taking a position contrary to a position the party has taken in an earlier proceeding. . . . [J]udicial estoppel serves interests different from those served by equitable estoppel, which is designed to ensure fairness in the relationship between parties. . . . The courts invoke judicial estoppel as a means to preserve the sanctity of the oath or to protect judicial integrity by avoiding the risk of inconsistent results in two proceedings. . . . [S]ee . . . New Hampshire v. Maine, 532 U.S. 742, 749-50, 121 S. Ct. 1808, 149 L. Ed. 2d 968 (2001) (judicial estoppel protect[s] the integrity of the judicial process ... by prohibiting parties from deliberately changing positions according to the exigencies of the moment . . .).

“Typically, judicial estoppel will apply if: 1) a party’s later position is clearly inconsistent with its earlier position; 2) the party’s former position has been adopted in some way by the court in the earlier proceeding; and 3) the party asserting the two positions would derive an unfair advantage against the party seeking estoppel. . . . We further limit judicial estoppel to situations where the risk of inconsistent results with its impact on judicial integrity is certain. . . . Thus, courts generally will not apply the doctrine if the first statement or omission was the result of a good faith mistake . . . or an unintentional error.” (Citations omitted; internal quotation marks omitted.) Assn. Resources, Inc. v. Wall, 298 Conn. 145, 169-70, 2 A.3d 873 (2010). “Because the rule is intended to prevent improper use of judicial machinery . . . judicial estoppel is an equitable doctrine invoked by a court at its discretion .... Accordingly, our review of the trial court’s decision not to invoke the doctrine is for abuse of discretion.” (Citations omitted; internal quotation marks omitted.) Id., 171. Thus, our analysis of the application of the doctrine of judicial estoppel requires an examination and comparison of the defendants’ argument in opposition to the plaintiffs request to amend its complaint in MacDer-mid I and their argument in favor or dismissing the plaintiffs complaint in this case, MacDermid II.

On February 21, 2012, the plaintiff filed a motion for leave to amend its complaint in MacDermid I. In seeking to amend its complaint, the plaintiff argued that “[t]he proposed new counts arise from the same occurrence that is the subject of [the plaintiffs] complaint, namely, [the] Cookson [defendants] illegal use of confidential business information [belonging to the plaintiff] in connection with the competitive bidding and due diligence process for the purchase of [the plaintiffs stock]. As a result, amending the complaint to include the proposed counts would promote a complete adjudication of the dispute among the parties.” The plaintiff claimed that the proposed new counts and the related factual information would neither prejudice the defendants nor delay the proceedings, and that, in fact, the proposed amendment was the result of information first discovered by the plaintiff in the course of discovery in that case.

In opposition to the plaintiffs motion for leave to amend its complaint, the defendants filed a written objection dated March 7, 2012, in which they argued that “none of the facts pled in [the plaintiffs] first six [versions of its] complaint concerned representations alleged to have been made by the Cookson defendants before or after entering into the letter agreement.” The defendants thus argued that the plaintiffs proposed amended complaint would “allege three new causes of action, premised on [eighteen] new paragraphs replete with new factual allegations. . . . These new allegations present entirely different facts . . . .” The defendants concluded that the plaintiffs proposed amendments alleged a “new and different factual situation” that prevented the application of the relation back doctrine.

The court summarily denied the plaintiffs motion for leave to amend its complaint, which was based primarily upon the plaintiffs contention that the claims it proposed to add to the complaint had been fraudulently concealed from it by the defendants. The court denied the plaintiffs motion to reargue, stating that the plaintiffs allegation of fraudulent concealment “in no way changes the court’s consideration as to whether [the] proposed amendment states a new cause of action or relates back.” Although the court did not issue a memorandum of decision articulating the factual and legal bases for its denial of the plaintiffs request to amend, it is clear from its ruling on the motion to rear-gue that it had accepted the defendants’ arguments that the proposed new allegations stated a new cause of action that did not relate back to the allegations of the original complaint in MacDermid I.

In their motion to dismiss the complaint in MacDer-mid II, filed on October 25, 2012, only approximately seven months after opposing the plaintiffs motion for leave to amend in MacDermid I on the ground that the plaintiffs proposed amendment in that case raised new causes of action based upon newly alleged facts, the defendants claimed that this case, MacDermid II, concerns “the same business transaction,” “arises out of the same factual background,” and “s[eeks] the identical relief’’ as the plaintiffs claims in MacDermid I. In fact, the defendants claimed in their motion to dismiss that the allegations in the two complaints are “virtually alike because they arise out of the same factual background, and between the same parties and seek the same relief.” The defendants also described the allegations of the MacDermid II complaint as “redundant” in nature, and contended that “the two cases were brought to adjudicate the same underlying rights.” The defendants argued that “[although [the plaintiffs] complaint in this case interposes different legal theories to characterize how the defendants’ actions allegedly resulted in liability, the conduct that [the plaintiff] alleges was wrongful and the relief that [it] seeks in this case is the same as the conduct that [the plaintiff] alleges was wrongful and the relief that [it] seeks in MacDermid /.” The defendants claimed that “[i]n this case, [the plaintiff] has merely [repleaded] the same allegations advanced in MacDermid I under the guise of some new legal theories.”

In sum, the defendants argued in opposition to the plaintiffs motion for leave to amend its complaint in MacDermid I that the proposed amendment presented new causes of action based upon new facts, and that, on that basis, the amendment should not be permitted. The defendants persuaded the court to agree and the court thus denied the plaintiffs motion for leave to amend its complaint. The defendants have now changed their position, claiming that those additional allegations arise from the same factual background as the allegations in MacDermid I and that they are redundant. This argument is entirely contrary to the earlier position on which the defendants prevailed. This duplicitous conduct by the defendants epitomizes the behavior of a party “deliberately changing positions according to the exigencies of the moment.” It is difficult to imagine a case that more strongly cries out for the application of judicial estoppel than this one. We conclude that the defendants should have been judicially estopped from seeking dismissal of the plaintiffs complaint on the basis of the prior pending action doctrine, and thus that the trial court abused its discretion in dismissing the plaintiffs action.

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

In this opinion the other judges concurred.

       The court also dismissed the two other counts of the plaintiffs complaint, but the plaintiff has not challenged that ruling. The three counts that are the subject of this appeal represent the remaining counts of the plaintiffs complaint in this action.

       We refer in this opinion to the Cookson Group, PLC, and Cookson Electronics, Inc., collectively, as the Cookson defendants.

       The plaintiff also claims that the purposes for which the prior pending action doctrine was developed are not implicated in this case, that it is simply seeking to have its claims heard on the merits and thus that the principles of equity dictate that the court should have exercised its discretion and denied the defendants’ motion to dismiss. The trial court concluded that the plaintiffs filing of MacDermid II was not intended to vex or harass, but, nevertheless applied the prior pending action doctrine and granted the defendants’ motion to dismiss on the ground that the filing of MacDermid II constituted an attempted “end run around” the trial court’s earlier denial of the plaintiffs motion to amend in MacDermid I. The court refused to “countenance such maneuvering.” Because we conclude that the defendants are judicially estopped from asserting a prior pending action claim, we need not address this additional claim of error.

        MacDermid I also includes claims against a former consultant with the plaintiff, David North, for breach of contract, violations of the Connecticut Uniform Securities Act (CUSA), General Statutes § 36b-2 et seq., violations of CUTPA, and other claims. North is not named in MacDermid II.

       “Copeland was not cited in as a named defendant.”

       “The defendants had argued that the amendments sounding in tort were barred by the statute of limitations as well as that they were untimely and prejudicial if permitted.”

       “When MacDermid, II was filed, th[e trial] court had not yet ruled on the motion to amend in MacDermid I, to add the second breach of contract claim.”

       The defendants do not claim that their argument in either proceeding was the result of a mistake or unintentional error.

       In opposing the request to amend, the defendants also argued that the court lacked subject matter jurisdiction to adjudicate the plaintiffs proposed securities claim and that the plaintiffs new claims were barred by the applicable statute of limitations.

       In dismissing the plaintiffs complaint in the present case, the trial court relied on this court’s decision in Sandvig v. A. Dubrewil & Sons, Inc., 68 Conn. App. 79, 789 A.2d 1012 (2002), appeal dismissed, 270 Conn. 90, 851 A.2d 290 (2004), in which this court held: “We conclude that the relation back doctrine was properly applied in light of the prior pending action doctrine because although the pleadings in the two actions were virtually alike, Has facts necessary to prove the allegations in the amended complaint were new and different from those necessary to the original complaint.” (Emphasis in original.) Id., 88. This case is distinguishable from Sandvig for two reasons. First, in this case, the defendants have argued that the complaint in this action arises from the “same factual background” as the complaint in MacDermid I and that the allegations are redundant. Second, the court in Sandvig did not address the doctrine of judicial estoppel, nor could it have, because that doctrine was not first considered as a matter of Connecticut law until 2010. See Assn. Resources, Inc. v. Wall, supra, 298 Conn. 169.

       In rejecting the plaintiffs judicial estoppel argument, the trial court emphasized the fact that the two proceedings at issue in this case, the plaintiffs request to amend its complaint in MacDermid I and the defendants’ motion to dismiss the complaint in MacDermid II, are distinct proceedings that precluded a finding that the first requirement of judicial estoppel was met. To be sure, there are instances in which a party may properly assert different positions while dealing with distinctly different legal proceedings. Our Supreme Court has held, however, as the plaintiff aptly points out, that the “transaction or occurrence” test for determining whether newly pleaded claims relate back to the original claims in the context of a request to amend a complaint and in resolving the issue of whether a case should be dismissed pursuant to the prior pending action doctrine are the same. Sherman v. Ronco, 294 Conn. 548, 555-56, 985 A.2d 1042 (2010); Beaudoin v. Town Oil Co., 207 Conn. 575, 587-88, 542 A.2d 1124 (1988). In other words, allegations cannot consistently be held to be separate and distinct in the context of a request to amend, but identical in the context of a motion to dismiss based upon the prior pending action doctrine.


author: DUPONT, J.

text:
    STATE OF CONNECTICUT v. JEREMY D.

    (AC 35058)
    DiPentima, C. J., and Lavine and Dupont, Js.

      Argued February 4
    officially released April 22, 2014

      Glenn W. Falk, assigned counsel, with whom, on the brief, was Deborah M. Frankel, legal fellow, for the appellant (defendant).

      Bruce R. Lockwood, senior assistant state’s attorney, with whom, on the brief, were Maureen Platt, state’s attorney, and Jason Germain, senior assistant state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to use the defendant’s full name or to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

   Opinion

DUPONT, J.

The defendant, Jeremy D., appeals from the judgment of conviction, rendered after a trial to the court, of one count of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A), one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (l), and one count of risk of injury to a child in violation of § 53-21 (a) (2). On appeal, the defendant claims that the court failed to ensure that he knowingly, intelligently and voluntarily waived his right to a jury trial. Specifically, the defendant argues that, during its canvass of him, the court misstated relevant legal principles and did not take into account his inexperience with the criminal justice system. He therefore claims that the court improperly refused to allow him to withdraw his waiver of a trial by jury when he informed the court that he was confused. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of this appeal. The defendant was charged in a substitute information on March 8, 2012, with one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), one count of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (B) (2), one count of sexual assault in the fourth degree in violation of § 53a-73a (a) (1) (A), one count of risk of injury to a child in violation of § 53-21 (a) (2), and one count of risk of injury to a child in violation of § 53-21 (a) (1). On May 5,2010, the defendant pleaded not guilty and elected a trial by a jury of six. On March 12, 2012, the defendant appeared with counsel before the court to begin jury selection. Before jury selection began, however, the defendant alerted the court, Dami-ani, J., that he had decided to waive his right to a trial by jury and to proceed, instead, with a court trial. The following colloquy then took place:

“The Court: Mr. [D.], how old are you?
“The Defendant: Thirty-seven.
“The Court: And how far have you gone in school?
“The Defendant: Eleventh grade.
“The Court: You take any drugs, alcohol, or medication today?
“The Defendant: No, sir.
“The Court: Now, you’re here to start trial regarding a sexual assault case, correct?
“The Defendant: Yes, sir.
“The Court: And you have your attorney with you, [Howard] Lawrence. Right now, you elected a trial by a jury of six. In a jury trial, you and your lawyer would have a right or a say as to who’s going to be the trier of fact in your case. Potential jurors come out, they sit in the witness box, state’s attorney asks questions, your lawyer asks questions. The juror then leaves and goes outside the courtroom. You then confer with your lawyer and say I don’t like that person, I like—whatever. You understand that?
“The Defendant: Yes, sir.
“The Court: Court trial, whatever judge it is, it is. You understand that?
“The Defendant: Yes, sir.
“The Court: In a jury trial, the state’s got to convince all six jurors of your guilt beyond a reasonable doubt. Your lawyer only has to create a reasonable doubt in one juror’s mind to get a hung jury. You understand that? A mistrial.
“The Defendant: Yes, sir.
“The Court: In a court trial there’s only one person. The state’s got to convince that one person of your guilt beyond a reasonable doubt, and your lawyer’s got to create a reasonable doubt in that one person’s mind. You understand that?
“The Defendant: Yes, sir.
“The Court: Now, you’re charged with [a] five count information. Sexual assault in the first degree, sexual assault in the third degree, sexual assault in the fourth degree, risk of injury under subsection (1) and risk of injury subsection (2). You’re exposed to a maximum penalty of seventy years in jail, and/or a $60,000 fine, of which, if the sentence—you’re convicted and the sentences were consecutive, fifteen years cannot be suspended or reduced by the court, you understand that?
“The Defendant: Yes, sir.
“The Court: Do you understand all that?
“The Defendant: Yes, sir.
“The Court: Do you wish to be tried by a judge or by a jury?
“The Defendant: A judge.
“The Court: And that’s your free [act] and deed?
“The Defendant: Yes, sir.
“The Court: This choice is irrevocable, which means if you change your mind two seconds from now, it’s too late. Do you understand that?
“The Defendant: Yes, sir.
“The Court: You’ve talked to your lawyer about this?
“The Defendant: Yes, sir.
“The Court: He’s explained everything in great detail?
“The Defendant: Yes, sir.
“The Court: And you’re satisfied with his representation?
“The Defendant: Yes.
“The Court: And you want to make an election of your own free will to go from a jury to a court trial, correct?
“The Defendant: Yes, sir.
“The Court: Anything further [defense counsel] on this?
“[Defense Counsel]: No, that covers it, Your Honor.
“The Court: Record will reflect a knowing, intelligent, voluntary waiver of jury to court; matter is set for a court trial.”

On March 19, 2012, the defendant moved to vacate his election to trial by the court in favor of a jury trial. The defendant argued that the court confused him because, during its canvass of him, the court had stated: “Your lawyer only has to create a reasonable doubt in one juror’s mind to get a hung jury. ” (Emphasis added.) The defendant claimed that the court’s use of the word “create” led him to mistakenly believe that he had a burden of production and persuasion and that, because he “is [a] layman, he was confused by the canvass.” In denying the defendant’s motion, Judge Damiani stated: “[Defense counsel], you want to split hairs, when you argue to a jury, and I’ve done it thousands of times, the state has the burden of proof beyond a reasonable doubt .... We know you have no burden of proof, but they have to prove beyond a reasonable doubt .... [Your motion] is denied. You have an exception.”

The defendant then proceeded to trial before the court, Crawford, J., and was convicted of sexual assault in the fourth degree in violation of § 53a-73a (a) (1) (A), risk of injury to a child in violation of § 53-21 (a) (2), and risk of injury to a child in violation of § 53-21 (a) (1). On June 1, 2012, the court sentenced the defendant to a total effective term of fifteen years incarceration, suspended after five years, with fifteen years probation. This appeal followed.

On appeal, the defendant claims that the court improperly determined that the waiver of his right to a jury trial was done knowingly, intelligently and voluntarily. Specifically, the defendant asserts that the court improperly refused to permit him to withdraw his waiver when he expressed his confusion concerning the court’s alleged misrepresentation that the defendant had to “create” a reasonable doubt for the jury. We disagree.

Before addressing the merits of the defendant’s claim, we begin by setting forth the applicable standard of review and the legal principles governing our analysis. “The right to a jury trial in a criminal case is among those constitutional rights which are related to the procedure for the determination of guilt or innocence. The standard for an effective waiver of such a right is that it must be knowing and intelligent, as well as voluntary. . . . [W]e have adopted the definition of a valid waiver of a constitutional right as the intentional relinquishment or abandonment of a known right. . . . This strict standard precludes a court from presuming a waiver of the right to a trial by jury from a silent record. ... In determining whether this strict standard has been met, a court must inquire into the totality of the circumstances of each case. . . . When such a claim is first raised on appeal, our focus is on compliance with these constitutional requirements rather than on observance of analogous procedural rules prescribed by statute or by the Practice Book. . . . Our task, therefore, is to determine whether the totality of the record furnishes sufficient assurance of a constitutionally valid waiver of the right to a jury trial. . . . Our inquiry is dependent upon the particular facts and circumstances surrounding [each] case, including the background, experience, and conduct of the accused. ... In examining the record, moreover, we will indulge every reasonable presumption against waiver of fundamental constitutional rights and . . . [will] not presume acquiescence in the loss of fundamental rights. ... In addition, a waiver of a fundamental constitutional right [such as the right to a trial by jury] is not to be presumed from a silent record. . . .

“ [Rather] in determining whether a court has properly accepted a waiver of the right [to a jury trial], there must be some affirmative indication from the accused personally, on the record, that he or she has decided to waive the fundamental right to a jury trial [as] the defendant’s silence is too ambiguous to permit the inference that he or she has waived such a fundamental right.” (Citations omitted; internal quotation marks omitted.) State v. Tocco, 120 Conn. App. 768, 777-78, 993 A.2d 989, cert. denied, 297 Conn. 917, 996 A.2d 279 (2010). Importantly, “[a] defendant’s personal assertion of a waiver of the right to a jury trial is not conclusive evidence that the waiver was made knowingly, intelligently and voluntarily, but its absence is a fatal blow to the validity of a waiver.” State v. Gore, 288 Conn. 770, 782, 955 A.2d 1 (2008).

“In addition to determining that a defendant who seeks to [waive a constitutional right] is competent, a trial court must satisfy itself that the waiver ... is knowing and voluntary. . . . [I]n this sense, there is a heightened standard for [the waiver of a constitutional right], but it is not a heightened standard of competence. . . . Moreover, it is the same standard that is applicable to all criminal defendants who have been found competent to stand trial. Under this standard, [t]he determination of whether there has been an intelligent waiver of [a constitutional right] must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” (Internal quotation marks omitted.) State v. Tocco, supra, 120 Conn. App. 779.

We first note that the defendant addressed the court personally and stated on the record that he wanted a trial before the court in lieu of a trial by jury. The condition precedent for a constitutionally valid waiver was therefore satisfied. See id., 778-79. We must now examine the totality of the circumstances, which include the defendant’s competence and background as well as the court’s statements to the defendant, to determine whether the defendant’s waiver was knowingly, intelligently and voluntarily made.

Although the defendant’s competence is not otherwise challenged on appeal, the defendant does argue that his lack of familiarity with the criminal process as a “layman” combined with the court’s alleged misuse of the word “create”—an argument we will address— confused him. It is thus important to note at the outset that a lack of understanding or mere confusion concerning criminal proceedings does not amount to mental incompetence in determining whether a defendant was sufficiently competent to validly waive a constitutional right to a trial by jury. See State v. Paulino, 127 Conn. App. 51, 66, 12 A.3d 628 (2011) (“although the defendant did admit that he often was confused by court procedures, a lack of legal expertise is not indicative of incompetence”).

As the defendant’s competence is not otherwise at issue, we now consider his background, conduct and experience. For that information, we look to the trial court transcripts and record as well as the court’s canvass of the defendant concerning his waiver. With respect to the court’s canvass of the defendant, the transcript of the colloquy itself reflects that the defendant responded to the court’s inquiries in an intelligible and well mannered fashion. See State v. Tocco, supra, 120 Conn. App. 780. During the court’s colloquy, the defendant represented that he was not under the influence of alcohol, drugs or medications, that he had an eleventh grade education, that he carefully had considered the issue after discussions with his attorney, and that he was confident in his decision to proceed with a court trial. When questioned on the specifics of the waiver, the defendant reiterated multiple times that he understood the irrevocability of his decision and that he had decided voluntarily to instead elect a court trial. During his trial testimony, the defendant similarly responded to questions in a polite and coherent manner. There is nothing in the record to indicate that the defendant was not a man of ordinary intelligence or that he lacked meaningful life experience. See State v. Rizzo, 303 Conn. 71, 92, 31 A.3d 1094 (2011), cert. denied, U.S. , 133 S. Ct. 133, 184 L. Ed. 2d 64 (2012).

Importantly, the record reflects that the defendant was represented by counsel, Lawrence, throughout the course of the trial. There is also nothing in the record to indicate that the defendant had problems communicating effectively with Lawrence before, during, or after trial. In fact, the defendant reiterated during the court’s canvass that he had discussed his decision to waive his right to a jury trial with his attorney, that his attorney had explained everything in detail, and that he was satisfied with the advice given to him by counsel. The fact that the defendant was represented by counsel and that he conferred with counsel concerning the right to waive his right to a jury supports the conclusion that his waiver to a trial by jury was done knowingly and intelligently. See, e.g., State v. Smith, 100 Conn. App. 313, 324, 917 A.2d 1017, cert. denied, 282 Conn. 920, 925 A.2d 1102 (2007); see also State v. Cobb, 251 Conn. 285, 373, 743 A.2d 1 (1999) (“[although the presence of counsel does not by itself mean that the defendant’s interests and rights are protected . . . [t]he fact of counsel being present and having advised the defendant [concerning jury waiver] is a factor to be considered in determining the question of the need for or sufficiency of any admonition given by the court” [internal quotation marks omitted]), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000).

We turn next to the court’s statements during its colloquy with the defendant. In questioning the defendant, the court explained the difference between a jury trial, including defense counsel’s ability to influence jury selection, and a court trial, which the defendant confirmed he understood. The court confirmed that the defendant had discussed his decision to proceed with a court trial with his attorney and inquired as to whether he was satisfied with his counsel’s explanation. Importantly, the court unambiguously stated that the waiver of the right to a trial by jury was an irrevocable decision, “which means if you change your mind two seconds from now, it’s too late.” The defendant replied to the court’s inquiries immediately, confirmed that he understood every aspect of the waiver repeatedly, and twice confirmed that he was freely choosing a court trial before the court granted the defendant’s waiver. See State v. Tocco, supra, 120 Conn. App. 781 (“[t]he defendant’s immediate and unequivocal replies to the court’s inquiries reflected his strong desire to proceed to trial before the court, not a jury”). At the end of the canvass, the court asked defense counsel if he had anything further, to which he responded, “No, that covers it, Your Honor.” The issue of waiver was thus clearly addressed by the trial court, as evidenced by the defendant’s explicit and unambiguous response to the court’s inquiries that he had chosen to proceed to trial before the court instead of before a jury.

In examining the totality of the circumstances, we conclude that the defendant knowingly, intelligently and voluntarily waived his right to a trial by jury and, instead, elected to proceed with a court trial. The court conducted a canvass of the defendant, on the record, which determined that the defendant understood his right to a trial by jury and also confirmed that he understood the irrevocability and relevant differences in electing to instead proceed with a court trial. The record as a whole indicates that the defendant did have a sufficient understanding of his right to proceed to trial before a jury such that he could have waived that right in a constitutionally appropriate manner. We therefore disagree with the defendant’s argument that the court failed to ensure a knowing, intelligent and voluntary waiver of his right to a jury trial.

The defendant next argues that the court improperly refused to allow him to withdraw his election of a court trial on the ground that it had misstated relevant legal principles during its canvass. Specifically, the defendant asserts that the court’s use of the word “create” in describing the burden of proof in a criminal trial confused him because it may have caused him “to [believe] that his attorney . . . would be unable to create a reasonable doubt in the mind of a juror, and therefore he decided to forgo a jury trial.” In support of his argument, the defendant cites numerous cases in which burden shifting language in jury instructions or closing arguments have warranted new trials and also relies on General Statutes § 54-82b (b) for additional support.

Although we agree that § 54-82b (b) does provide the defendant with the right to challenge the validity of his waiver under certain circumstances, the record does not indicate that the mere use of the word “create” in the court’s canvass of the defendant rendered him so confused that he was “not fully cognizant of his rights . . . .” General Statutes § 54-82b (b). We do note that in State v. Fernandez, 27 Conn. App. 73, 83, 604 A.2d 1308, cert. denied, 222 Conn. 904, 606 A.2d 1330 (1992), this court opined: “The defendant requested the court to instruct the jury that the defendant’s evidence ‘need only be sufficient to create a reasonable doubt. Hence, when assessing circumstantial evidence offered by the defense, you see if it creates a reasonable doubt.’ . . . An instruction that the jury should determine whether the defendant has created a reasonable doubt carries with it a substantial and totally unjustifiable risk of diluting the constitutional requirement that the burden of proving the defendant guilty rests squarely on the state and that the defendant bears no burden of proving himself innocent.” (Citation omitted; emphasis in original.) Given the totality of the circumstances in the present matter, however, we conclude that the court’s use of the word “create” in its canvass of the defendant, although not the clearest term it could have employed, was not sufficiently confusing so as to conclude that it impermissibly shifted the burden of proof onto the defendant. It is important to note that, in its canvass of the defendant, the court used the term “create” with respect to both jury trials and court trials. Therefore, the word “create” was used in a neutral manner such that any claimed mistake was inconsequential. Furthermore, and as the state also points out on appeal, both our Supreme Court and this court have utilized the term “create” in describing a defendant’s trial strategy. See State v. Findlay, 198 Conn. 328, 344, 502 A.2d 921 (“[t]he defense counsel attempted to paint a favorable portrait of the defendant in order to create a reasonable doubt in the minds of the jury”), cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986); State v. Buster, 27 Conn. App. 263, 274, 606 A.2d 9 (1992) (“[i]n his case-in-chief, the defendant sought to create a reasonable doubt as to his guilt by presenting evidence from several witnesses”), aff'd, 224 Conn. 546, 620 A.2d 110 (1993). Our conclusion is only reinforced given the fact, as noted, that the defendant was represented by counsel at all relevant times. Accordingly, the defendant’s argument must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-73a (a) provides in relevant part: “A person is guilty of sexual assault in the fourth degree when: (1) Such person intentionally subjects another person to sexual contact who is (A) under thirteen years of age and the actor is more than two years older than such other person . . .

       General Statutes § 53-21 (a) provides in relevant part: “Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child . . . shall be guilty of a class C felony for a violation of subdivision (1) . . .

       General Statutes § 53-21 (a) provides in relevant part: “Any person who ... (2) has contact with the intimate parts, as defined in section 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 for a violation of subdivision (2) . . . .”

       The defendant relies on his right to a trial by jury under both the sixth amendment to the constitution of the United States as well as article first, §§ 8 and 19, as amended by article four of the amendments, of the constitution of Connecticut. For purposes of this appeal, however, the defendant does not claim that his rights under the state constitution are more extensive than his rights under the constitution of the United States.

       General Statutes § 54-82b (b) provides for the withdrawal of a jury trial waiver under certain circumstances: “In criminal proceedings the judge shall advise the accused of his right to trial by jury at the time he is put to plea and, if the accused does not then claim a jury, his right thereto shall be deemed waived, but if a judge acting on motion made by the accused within ten days after judgment finds that such waiver was made when the accused was not fully cognizant of his rights or when, in the opinion of the judge, the proper administration of justice requires it, the judge shall vacate the judgment and cause the proceeding to be set for jury trial.”