author: LAVINE, J.

text:
    ELOISE MARINOS ET AL. v. DAVID M. POIROT ET AL.
    (AC 33193)
    Lavine, Bear and Bishop, Js.

      Argued October 27
    officially released December 27, 2011

      John R. Williams, for the appellants (plaintiffs).

      David M. Poirot, with whom was Gordons. Johnson, Jr., pro se, for the appellees (defendants).
   Opinion

LAVINE, J.

The plaintiff, Eloise Marinos, individually and as administratrix of the estate of Steven F. Meo (Meo), appeals from the judgment of the trial court rendered following the granting of the motions for summary judgment in favor of the defendants, David M. Poirot and Gordon S. Johnson, Jr. On appeal, the plaintiff claims that the trial court improperly granted the motions for summary judgment on the (1) breach of the duty of loyalty counts, (2) conversion and civil theft counts, (3) computer offense counts and (4) Connecticut Unfair Trade Practices Act (CUTPA) counts on the ground that the plaintiff failed to produce evidence of ascertainable damages or harm. We affirm the judgment of the trial court.

The following facts provide the background for our resolution of this appeal. The plaintiff and Meo were wife and husband. Meo was engaged in the practice of law as the sole proprietor of the Law Office of Steven F. Meo (Meo law office) and in 1992 employed Poirot as an associate. In October, 2005, Meo was hospitalized and remained hospitalized until his death on April 25, 2006. From the time Meo was hospitalized until his death, Poirot was the only attorney in the Meo law office, and he managed its clients and files. In December, 2005, Meo authorized Poirot to be added as a signatory to the Meo law office’s operating checking account and its clients’ funds IOLTA account so that Poirot could manage and facilitate settlement disbursements for clients. On April 28, 2006, Poirot left the Meo law office to open his own practice and was retained by approximately fifty-one of the fifty-three clients of the Meo law office to handle their legal matters to conclusion.

Johnson, an attorney licensed to practice law in Wisconsin, specializes in traumatic brain injury litigation. Beginning in 2002, Johnson, with Meo as local counsel, litigated certain traumatic brain injury cases in Connecticut. Following Meo’s death, Johnson and Poirot litigated two traumatic brain injury cases that had originated in the Meo law office. In April, 2009, the plaintiff commenced this action against the defendants. Her revised complaint sounds in nineteen counts. In sum, the plaintiff alleges that in November, 2005, Poirot began to plan the opening of his own law office and to appropriate business from the Meo law office. The plaintiff alleges that Poirot stole clients from the Meo law office, as well as supplies and the services of its employees. Moreover, the plaintiff alleges that Poirot and Johnson conspired to appropriate cases from the Meo law office to their benefit and to the detriment of the Meo law office. The plaintiff claims that, as Meo’s widow and the administratrix of his estate, she is the successor to Meo’s interest in the Meo law office and that she was harmed by the defendants’ acts. The defendants deny the material allegations of the revised complaint and allege certain special and affirmative defenses, including, among others, satisfaction and accord, res judicata and collateral estoppel.

On September 27, 2010, Poirot filed a motion for summary judgment, with a memorandum of law and supporting documents, as to counts one through five and eight through nineteen of the revised complaint. Johnson filed his motion for summary judgment, with a memorandum of law and supporting documents as to counts six and seven, on October 8,2010. The plaintiff filed objections to both motions accompanied by memoranda of law and supporting documents. The parties appeared at short calendar on November 8, 2010, to argue the motions for summary judgment. Additional facts will be addressed as necessary.

Our rules of practice provide that “[i]n any action, except administrative appeals which are not enumerated in Section 14-7, any party may move for a summary judgment at any time . . . .” Practice Book § 17-44. “A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like. . . . Any adverse party shall at least five days before the date the motion is to be considered on the short calendar file opposing affidavits and other available documentary evidence.” Practice Book § 17-45. “The judgment sought 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.” Practice Book § 17-49.

“In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. ... On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . Our review of the trial court’s decision to grant [a party’s] motion for summary judgment is plenary.” (Internal quotation marks omitted.) Southwick at Milford Condominium Assn., Inc. v. 523 Wheelers Farm Road, Milford, LLC, 294 Conn. 311, 318, 984 A.2d 676 (2009).

“A material fact is a fact which will make a difference in the result of the case. . . . [I]ssue-finding, rather than issue-determination, is the key to the procedure. . . . [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment. . . . [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist.” (Citation omitted; internal quotation marks omitted.) Curley v. Kaiser, 112 Conn. App. 213, 220, 962 A.2d 167 (2009). In ruling on a motion for summary judgment, “[t]he test is whether a party would be entitled to a directed verdict on the same facts.” (Internal quotation marks omitted.) Sherwood v. Danbury Hospital, 252 Conn. 193, 201, 746 A.2d 730 (2000).

I

The plaintiffs first claim is that the court improperly granted summary judgment in favor of Poirot on counts one, ten and fifteen, which allege breach of the duty of loyalty. The court found that the plaintiff had not submitted evidence that quantified the damages that the plaintiff purportedly sustained as a result of Poirot’s alleged breach of the duty of loyalty. We agree with the trial court.

The court found that the plaintiff alleged that Poirot breached the duty of loyalty that he owed to Meo by using the Meo law office staff and supplies to open his own law office, entering into contracts on behalf of the Meo law office without approval, signing checks without proper authorization and appropriating clients and computer data to the detriment of the Meo law office.

This court addressed a breach of the duty of loyalty claim in News America Marketing In-Store, Inc. v. Marquis, 86 Conn. App. 527, 533-38, 862 A.2d 837 (2004), aff'd, 276 Conn. 310, 885 A.2d 758 (2005). “The relationship of principal and agent implies trust or confidence by the principal in the agent, and the agent is obligated to exercise the utmost good faith, loyalty and honesty toward his principal or employer. 3 Am. Jur. 2d, Agency § 205 (2002~).,, News America Marketing In-Store, Inc. v. Marquis, supra, 535. “A party may recover for breach of loyalty in tort. In a tort action, harm is a necessary element of the prima facie case. 2 Restatement (Second), Agency, Liability for Loss Caused § 401, comment (b) (1958).” News America Marketing In-Store, Inc. v. Marquis, supra, 535. “One of the elements of a cause of action in tort for a breach of loyalty is actual harm, without which the cause of action is incomplete. ... If the plaintiff did not prove specific, quantifiable harm, it cannot recover any damages in tort for the alleged delicts of the defendant because harm is an element of the plaintiffs cause of action in tort. Restatement (Second), supra, § 401, comment (b).” News America Marketing In-Store, Inc. v. Marquis, supra, 536.

In News America Marketing In-Store, Inc., the trial “court expressly found that the plaintiff had failed to adduce any evidence of harm resulting from the alleged acts of misconduct by [the defendant Steven] Marquis.” Id., 535. In the present action, the court found that the plaintiff failed to provide evidence of measurable damages resulting from Poirot’s alleged breach of the duty of loyalty and failed to include an accounting of alleged damages in her objection to Poirot’s motion for summary judgment. “[P]roof of a specific loss is an essential element in a cause of action for breach of the duty of loyalty owed by an employee to his employer.” (Internal quotation marks omitted.) News America Marketing In-Store, Inc. v. Marquis, 276 Conn. 310, 313, 885 A.2d 758 (2005).

On appeal, the plaintiff claims that she presented evidence of quantifiable damages. We agree that she presented a fist of damages that could be quantified, but she did not present evidence of the value of those damages. Although “the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion [for summary judgment] ... 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.) Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn. App. 582, 591, 715 A.2d 807 (1998). Demonstrating a genuine issue of material fact requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred. See United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378-79, 260 A.2d 596 (1969). To 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. See Daily v. New Britain Machine Co., 200 Conn. 562, 569, 512 A.2d 893 (1986).

To oppose successfully the motion for summary judgment, the plaintiff was required to introduce evidence to indicate the dollar value of the harm she claims she sustained. See News America Marketing In-Store, Inc. v. Marquis, supra, 86 Conn. App. 536-37. Because the plaintiff failed to present a dollar value of her alleged loss, the court properly found that there were no genuine issues of material fact as to whether the plaintiff sustained a quantifiable harm resulting from Poirot’s alleged breach of the duty of loyalty. The court therefore properly granted Poirot’s motion for summary judgment on the breach of the duty of loyalty counts.

II

The plaintiffs second claim is that the court improperly granted summary judgment on counts four, thirteen and eighteen alleging conversion, and counts five, fourteen and nineteen alleging civil theft against Poirot by concluding that the plaintiff had not provided sufficient evidence of her damages. We disagree.

The tort of “[conversion occurs when one, without authorization, assumes and exercises ownership over property belonging to another, to the exclusion of the owner’s rights.” (Internal quotation marks omitted.) Wellington Systems, Inc. v. Redding Group, Inc., 49 Conn. App. 152, 169, 714 A.2d 21, cert. denied, 247 Conn. 905, 720 A.2d 516 (1998). The tort of conversion requires, in addition, that the owner be harmed as a result of the unauthorized act. See Devitt v. Manulik, 176 Conn. 657, 660, 410 A.2d 465 (1979). “[Statutory theft requires a plaintiff to prove the additional element of intent over and above what he or she must demonstrate to prove conversion.” (Internal quotation marks omitted.) Suarez-Negrete v. Trotta, 47 Conn. App. 517, 521, 705 A.2d 215 (1998).

In his motion for summary judgment, Poirot argued that the plaintiff was unable to establish any damages resulting from his alleged acts. In her objection, the plaintiff claimed that she had provided evidence of measurable damages. The court found that the plaintiff had failed to produce any evidence to establish the value of the items allegedly taken or that the plaintiff was damaged by Poirot’s acts. She therefore could not establish a prima facie case of conversion or civil theft.

On appeal, the plaintiff claims that the issue is whether she is obligated to prove the precise amount of her damages or to prove only the existence of some damages that a jury would be capable of determining. She relies on an unassailable proposition of law that Connecticut “does not require a party claiming damages to prove them with exactitude or precision. Indeed, a party seeking damages must only afford a basis for a reasonable estimate by the trier, court or jury, of the amount of that [party’s] loss. From the very nature of the situation, the amount of loss cannot be proved with exactitude and all that can be required is that the evidence, with such certainty as the nature of the particular case may permit, lay a foundation which will enable the trier to make a fair and reasonable estimate.” (Internal quotation marks omitted.) Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 241, 828 A.2d 64 (2003). The facts of this case, however, undermine the plaintiffs claim.

The plaintiff argues that although her responses to Poirot’s interrogatories do not provide appraisals of the value of the office supplies, the responses itemize the categories of loss with sufficient clarity so that a jury could make a fair and reasonable estimate of the damages. Our review of the plaintiffs answers to the relevant interrogatories persuades us that those answers do not meet the standard by which a jury could assign a fair, just and reasonable value of the damages the plaintiff alleges she sustained.

Meo died in April, 2006, and the Meo law office closed soon thereafter. The plaintiff commenced this action in April, 2009, and Poirot served interrogatories on the plaintiff on June 16, 2009. The plaintiff receivéd an extension of time within which to respond to the interrogatories and answered them on August 14,2009. Interrogatory number five of Poirot’s first set of interrogatories stated: “Provide a detailed description, including the estimated fair market value, of each item of office supplies and books of the [Meo law office] that you allege Poirot took for his own purposes, as alleged in paragraph 23 (c) of each count of the Complaint.” The plaintiffs answer stated: “Mr. Poirot took, for his own use, the following office supplies: copy paper, paper clips, note pads, pens, file folders, binders, boxes, tape, envelopes. The plaintiff does not know the fair market value of the office supplies that were usurped by the defendant, David Poirot.” (Emphasis added.)

Poirot filed a motion for summary judgment on September 27, 2010. The parties appeared at short calendar to argue the motion on November 8, 2010. Our review of the court file indicates that the plaintiff did not request an extension of time to respond to the motion for summary judgment. See Practice Book § 17-45. Our review encompassed the documents the plaintiff submitted to oppose the summary judgment motion, including her responses to Poirot’s interrogatories. Her answer to the fifth interrogatory lists office supplies that the plaintiff alleges Poirot misappropriated, but not the quantities by unit or the value of a unit. She also stated that she was unable to ascertain the fair market value of those supplies. In order to prevail on claims of conversion and civil theft, a plaintiff must prove harm. If the plaintiff could not assign a fair market value to the office supplies more than four years after the Meo law office closed, on this record, no jury could award damages without resorting to speculation. The court therefore properly granted Poirot’s motion for summary judgment on the counts of conversion and civil theft.

Ill

The plaintiffs third claim is that the court improperly granted summary judgment on counts two, eleven and sixteen alleging computer crimes; see General Statutes § 53a-251; on the ground that the expenses she incurred with regard to the computer system in the Meo law office were related to trial preparation. We do not agree.

In her revised complaint, the plaintiff alleges, among other things, that “Poirot was not authorized to access the computer system of the [Meo law office] to set up his own law practice and appropriate the business of the [Meo law office]. . . . Poirot deleted data from the computer systems of the [Meo law office] to cover up his actions, and the [e]state has incurred substantial expenses in reconstructing the deleted data. . . . Plaintiff is entitled to recovery of damages pursuant to . . . [General Statutes] § 52-570b.” In responding to the revised complaint, Poirot asserted the affirmative defense to the claim of unauthorized access that he was authorized to access the computer system of the Meo law office. See General Statutes § 53a-251 (b) (2).

Section 53a-251 provides in relevant part: “(b) . . . (1) A person is guilty of the computer crime of unauthorized access to a computer system when, knowing that he is not authorized to do so, he accesses or causes to be accessed any computer system without authorization. ... (e) ... A person is guilty of the computer crime of misuse of computer system information when ... (2) he intentionally or recklessly and without authorization (A) alters, deletes, tampers with, damages, destroys or takes data intended for use by a computer system . . . .” Section 52-570b (c) provides in relevant part: “[A]ny person who suffers any injury to person, business or property may bring an action for damages against a person who is alleged to have violated any provision of section 53a-251. The aggrieved person shall recover actual damages and damages for unjust enrichment not taken into account in computing damages for actual loss . . . .”

The court found, among other things, that the plaintiff alleged that Poirot did not have authorization to access and to use the Meo law office’s computer system to set up his own law practice and to appropriate business from the Meo law office. Moreover, the plaintiff alleged that Poirot deleted data from the Meo law office computer system to “cover up” his actions and that the plaintiff incurred substantial expenses in reconstructing the deleted data. The court noted, pursuant to News America Marketing In-Store, Inc. v. Marquis, supra, 86 Conn. App. 541-42, that expenses incurred by a party in investigating alleged wrongdoing constitutes a litigation expense and may not be claimed as damages. The court concluded that any expenses the plaintiff paid to recover the allegedly deleted data are not recoverable. The court also found that the circumstances of this case are not those of an existing law firm that has alleged a loss of future business or some other financial hardship due to a departing employee’s acts. The Meo law office closed shortly after Meo’s death. The court concluded therefore that there was no issue of material fact as to whether the plaintiff had sustained damages resulting from the alleged computer crimes. For the foregoing reason, the court properly granted summary judgment on counts two, eleven and sixteen.

IV

The plaintiff’s fourth and final claim is that the court improperly granted summary judgment on count nine, which alleges CUTPA violations as to Poirot, and count seven, which alleges CUTPA violations as to Johnson, on the ground that she failed to present evidence of damages within the meaning of Connecticut law. We disagree.

“Although CUTPA is primarily a statutory cause of action; see General Statutes § 42-110b; it equally is recognized that CUTPA claims may arise from underlying causes of action, such as contract violations or torts, provided the additional CUTPA elements are pleaded.” Sturm v. Harb Development, LLC, 298 Conn. 124, 139, 2 A.3d 859 (2010). The factual basis of the plaintiffs CUTPA claims is the defendants’ alleged conspiracy to appropriate the traumatic brain injury cases of the Meo law office.

“A party seeking to recover damages under CUTPA must meet two threshold requirements. First, he [or she] must establish that the conduct at issue constitutes an unfair or deceptive trade practice. . . . Second, he [or she] must present evidence providing the court with a basis for a reasonable estimate of the damages suffered.” (Internal quotation marks omitted.) MacMillan v. Higgins, 76 Conn. App. 261, 279, 822 A.2d 246, cert. denied, 264 Conn. 907, 826 A.2d 177 (2003). The plaintiff had the burden of presenting facts to the court giving rise to a genuine issue of fact that she and the estate suffered an ascertainable loss as a result of the defendants’ alleged acts. See Service Road Corp. v. Quinn, 241 Conn. 630, 639, 698 A.2d 258 (1997).

“The ascertainable loss requirement is a threshold barrier which limits the class of persons who may bring a CUTPA action seeking either actual damages or equitable relief. . . . Thus, to be entitled to any relief under CUTPA, a plaintiff must first prove that he has suffered an ascertainable loss due to a CUTPA violation. . . . An ascertainable loss is a loss that is capable of being discovered, observed or established. . . . The term loss necessarily encompasses a broader meaning than the term damage, and has been held synonymous with deprivation, detriment and injury. ... To establish an ascertainable loss, a plaintiff is not required to prove actual damages of a specific dollar amount. ... [A] loss is ascertainable if it is measurable even though the precise amount of the loss is not known.” (Citations omitted; internal quotation marks omitted.) Artie’s Auto Body, Inc. v. Hartford Fire Ins. Co., 287 Conn. 208, 217-18, 947 A.2d 320 (2008).

The court found that, although the plaintiff was not required to provide proof of actual damages in the form of a specific dollar amount, the damages must be measurable. The plaintiff claimed to have provided measurable damages in response to Poirot’s interrogatories and requests for production, namely, exhibits three, four and five. The court found, however, that the plaintiffs responses do not contain any itemization of damages that supports her CUTPA claims. The court also found that Poirot repeatedly requested that the plaintiff state the amount of damages allegedly sustained. In response to Poirot’s first set of interrogatories, on August 14, 2009, the plaintiff stated: “A complete account of financial damages and losses is ongoing, therefore no itemization can be listed herein. As soon as the cumulative value has been assessed we will forward a copy of the same.” As of the date of the short calendar argument on the defendants’ motions for summary judgment, the plaintiff had failed to produce an itemization of her claimed CUTPA damages. For the foregoing reasons, we conclude that the court properly granted the defendants’ motions for summary judgment on counts seven and nine.

The judgment is affirmed.

In this opinion the other judges concurred.

       We refer in this opinion to Marinos in both capacities as the plaintiff.

       See General Statutes § 42-110a et seq.

       In its decision, the court referenced Poirot v. Marinos, 123 Conn. App. 507, 1 A.3d 1274 (2010) (interpleader action regarding distribution of attorney’s fees generated on contingency basis for two personal injury actions).

       The plaintiffs revised complaint filed August 18,2009, alleges the following counts against Poirot: count one, breach of the duty of loyalty; count two, computer offense pursuant to General Statutes § 52-570b; count three, trade secrets violation; count four, conversion; count five, civil theft; count eight, civil conspiracy; count nine, CUTPA violations; count ten, breach of the duty of loyalty; count eleven, computer offense pursuant to § 52-570b; count twelve, trade secrets violation; count thirteen, conversion; count fourteen, civil theft; count fifteen, breach of the duty of loyalty; count sixteen, computer offense pursuant to § 52-570b; count seventeen, trade secrets violation; count eighteen, conversion; and count nineteen, civil theft. As to Johnson, the complaint alleges civil conspiracy in count six and CUTPA violations in count seven. The plaintiff sought damages, disgorgement of compensation, treble damages, punitive damages, attorney’s fees and costs, and legal and equitable relief.

       We understand that, in some instances, a statement of the amount of damages sustained cannot be made with mathematical precision; see Rafferty v. Noto Bros. Construction, LLC, 68 Conn. App. 685, 693, 795 A.2d 1274 (2002); but a plaintiff cannot rely on purely speculative assertions of loss.

       The court stated that it analyzed the counts of conversion and civil theft together because they “contain nearly identical factual allegations [and] ‘[t]he elements of civil theft are . . . largely the same as the elements to prove the tort of conversion.’ Sullivan v. Delisa, 101 Conn. App. 605, 620, 923 A.2d 760, cert. denied, 283 Conn. 908, 928 A.2d 540 (2007).”

       The plaintiffs conversion and civil theft claims encompassed both the alleged misappropriation of clients, client files and client fees and the alleged misappropriation of office supplies and the time of Poirot and the Meo law office staff. The court found that the claims related to clients and their files and fees were barred by the doctrine of res judicata. See Poirot v. Marinos, 123 Conn. App. 507, 1 A.3d 1274 (2010). The plaintiff does not contest that portion of the court’s ruling on Poirot’s motion for summary judgment.

       The plaintiff alleged that she was damaged by Poirot’s personal use of office equipment, staff and office supplies.

       In ruling on Poirot’s motion for summary judgment as to the computer offense counts, the court found that the plaintiff had failed to present it with documents demonstrating a genuine issue of material fact as to Poirot’s authorization to use the Meo law office computer system. It decided the motion, however, solely on the issue of measurable damages.

       The court did not address Poirot’s argument that CUTPA did not apply to the facts of this case. Poirot claimed that the Meo law office could not have remained in business after Meo’s death because Meo was its sole proprietor and that, upon the death of the owner, the plaintiff had no authority to continue the Meo law office.

       On the basis of our review of the exhibits, we agree with the trial court. Interrogatory number two of Poirot’s second set of interrogatories stated: “State the percentage of the [Meo law office’s] fees generated by practice area for each of the years 2001 to the present.” The plaintiff’s answer stated: “Account records do not permit sorting to obtain this type of data; however, [the plaintiff] obtained basic percentages of Case Type by sorting Needles Data to obtain number and type of cases CLOSED each calendar year, results are as follows. NOTE: These numbers are NOT based on FEES generated, but rather for Case Type CLOSED in a given calendar year.”


source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    KENNETH VON KOHORN v. SUSAN E. VON KOHORN
    (AC 32504)
    Robinson, Bear and Dupont, Js.

      Argued October 20
    officially released December 27, 2011

      Kenneth J. Bartschi, with whom were Sandra M. Bevans and, on the brief, Susan A. Moch, for the appellant (defendant).

      Samuel V. Schoonmaker IV, with whom was Wendy Dunne DiChristina, for the appellee (plaintiff).
   Opinion

ROBINSON, J.

The defendant, Susan E. Von Kohom, appeals from the judgment of the trial court rendered in response to a motion to reargue and for clarification filed by the plaintiff, Kenneth Von Kohom, regarding financial orders incident to a judgment of dissolution of marriage. The defendant claims on appeal that (1) the court abused its discretion when it modified sua sponte the existing alimony order from a lifetime award to a term of eight years when such relief was not sought by the plaintiff in his postjudgment motion and (2) the record was inadequate to support an award of alimony limited to a term of eight years. We agree that the court abused its discretion in modifying the alimony award sua sponte and reverse in part the judgment of the court.

The record reveals the following facts and procedural history. The plaintiff and the defendant married in 1979. The parties raised four children, now all adults. The plaintiff owns and runs a successful investment advisory firm. In recent years, the plaintiff hired his nephew to work at the firm, and the nephew became a 40 percent partner. The defendant never worked outside the home. Both parties are good parents and providers, and they are both in good health. The plaintiff is currently in his early sixties and the defendant is approximately six years younger.

On January 12, 2009, the plaintiff commenced the underlying marital dissolution action, alleging that the marriage had broken down irretrievably with no hope of reconciliation. On May 28, 2010, the court issued a memorandum of decision dissolving the parties’ marriage. The court stated that this was an unusual case because there was no evidence indicating the cause of the marital breakdown. The court rendered various financial orders, including an order that the plaintiff pay the defendant “during his lifetime and until her death” alimony consisting of 25 percent of all gross income up to $1 million and 20 percent of all gross income over $1 million up to $2 million, with any income the plaintiff earned in excess of $2 million to be free from any claim of the defendant.

On June 15, 2010, the plaintiff filed a motion titled “motion to reargue and for clarification, post judgment.” Concerning the court’s alimony order, the plaintiff first noted that the court’s order did not provide that the alimony payments would terminate upon the earlier of the defendant’s cohabitation as defined by General Statutes § 46b-86 (b) or her remarriage. The plaintiff stated that such provisions are “usual and customary provisions that the [c]ourt probably intended to include.” The plaintiff further stated that the defendant never asked the court to exclude those provisions from its order. By way of relief, the plaintiffs motion stated: “The [p]laintiff respectfully asks the [c]ourt to clarify the [d]ecision and expressly provide that alimony shall also terminate upon the earlier of the [defendant's cohabitation as defined by statute or upon her remarriage. If the [c]ourt intentionally drafted the alimony order as written, thus excluding cohabitation and remarriage as alimony termination events, then the [p]laintiff respectfully moves for reargument of such provisions.” On June 17, 2010, the defendant filed an objection to the plaintiffs motion to reargue and for clarification, in which she argued that clarification or reargument of the alimony order was unnecessary and inappropriate.

On July 13, 2010, the court issued an order granting the plaintiffs motion to reargue that provided in relevant part: “[T]he judgment is clarified as follows: Alimony shall be modified or terminated upon the defendant’s cohabitation as provided by [General Statutes] § 46b-86 (b). Alimony shall terminate upon defendant’s remarriage or eight years from date of judgment.” (Emphasis added.) This appeal followed.

The defendant first claims that the court abused its discretion when it modified sua sponte the existing alimony order from a lifetime award to a term of eight years where such relief was not requested by the plaintiff in his motion to reargue and for clarification. Because we agree with the defendant that the court’s modification was improper and reverse the judgment in part, it is unnecessary to address the defendant’s second claim that the record was inadequate to support an award of alimony limited to a term of eight years.

Our standard of review and the law relevant to the defendant’s claim on appeal is as follows. “An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... It is within the province of the trial court to find facts and draw proper inferences from the evidence presented. . . . In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . [T]o conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did.” (Internal quotation marks omitted.) Clark v. Clark, 127 Conn. App. 148, 153-54, 13 A.3d 682, cert. denied, 301 Conn. 914, 19 A.3d 1260 (2011).

“It is well recognized that our courts have inherent power to open, correct and modify judgments, but that authority is restricted by statute and the rules of practice. ... A motion to open a judgment is governed by General Statutes § 52-212a and Practice Book § 17-4. Section 52-212a provides in relevant part: Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. . . . Practice Book § 17-4 states essentially the same rule.” (Citation omitted; emphasis added; internal quotation marks omitted.) Richards v. Richards, 78 Conn. App. 734, 739-40, 829 A.2d 60, cert. denied, 266 Conn. 922, 835 A.2d 473 (2003).

In addition to the opening and modifying of a final judgment, Practice Book §§11-11 and 63-1 contemplate the filing of a motion seeking reargument of a final judgment. “[T]he purpose of a reargument is ... to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts. ... It also may be used to address . . . claims of law that the [movant] claimed were not addressed by the court. ... [A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple . . . .” (Citations omitted; internal quotation marks omitted.) Opoku v. Grant, 63 Conn. App. 686, 692-93, 778 A.2d 981 (2001). In addition to seeking alteration of a judgment, a party may also seek clarification. “[A] motion for clarification is an appropriate procedural vehicle to ensure that the original judgment is properly effectuated. . . . Motions for clarification may not, however, be used to modify or to alter the substantive terms of a prior judgment . . . and we look to the substance of the relief sought by the motion rather than the form to determine whether a motion is properly characterized as one seeking a clarification or a modification.” (Citations omitted; internal quotation marks omitted.) Mickey v. Mickey, 292 Conn. 597, 604-605, 974 A.2d 641 (2009). A court has broad discretion to treat a motion for clarification of a judgment or a motion to reargue a judgment as a motion to open and modify the judgment provided that the motion is filed within the four month period and the substance of the motion and the relief requested therein is sufficient to apprise the nonmovant of the purpose of the motion. See Fitzsimons v. Fitzsimons, 116 Conn. App. 449, 455 n.5, 975 A.2d 729 (2009); Rome v. Album, 73 Conn. App. 103, 111-12, 807 A.2d 1017 (2002).

To determine whether the court in the present case abused its discretion in responding to the plaintiffs postjudgment motion, we look to the relief sought by the plaintiff in the motion in conjunction with the language of the court’s response. In the plaintiffs motion, he first explains his belief that it is usual and customary for alimony orders to terminate upon the recipient’s cohabitation or remarriage, and that the court likely intended to include such limitations in the original alimony award. He requests that the court correct the apparent omission by clarifying its decision to expressly provide that alimony would terminate upon cohabitation and remarriage. By way of alternative relief, the plaintiff requests that, if the trial court intentionally left out the limitations, the plaintiff would like an opportunity to reargue the alimony award. Nowhere in the plaintiffs motion does he indicate any problem with the lifetime duration of the alimony award. The plaintiff does not ask the court to open the judgment for the purpose of modifying the alimony order from a lifetime award to a term of years, ñor does he ask the court to clarify that aspect of the alimony award. Nothing in the plaintiffs motion was sufficient to apprise the defendant that the purpose of the motion was to modify the duration of the alimony award from a lifetime award to a term of eight years so that the defendant properly could respond in an opposition to the motion.

The plaintiff asserts that the court was permitted to change any aspect of the alimony award. We find this argument unavailing. In its July 13,2010 order, the court did not state that it was opening the judgment, or that it had reconsidered its original alimony award. Instead, the court stated only that it was clarifying its judgment. We construe this as an indication that the court agreed with the plaintiff that it inadvertently had omitted from its original order the usual limitations terminating alimony upon the defendant’s cohabitation or remarriage. The additional provision of the court’s order, however, which states that alimony would terminate eight years from the date of the dissolution judgment, cannot be viewed as a clarification. No such clarification was sought, nor is there any indication that such a term was inadvertently omitted from the original order. That additional provision can only be viewed as a modification of the original judgment.

The court, by granting the plaintiffs request for clarification, lacked the authority to alter the substantive terms of the prior judgment beyond those terms that it determined were omitted from the original order. See Mickey v. Mickey, supra, 292 Conn. 604-605. It also lacked any authority to make substantive changes pursuant to General Statutes § 52-212a or Practice Book § § 17-4 and 11-11 because the court did not grant reargument of the terms of the alimony orders, and the court reasonably could not have treated the plaintiffs post-judgment motion as a motion to open the judgment and modify the alimony award because such relief was neither directly nor implicitly requested in the postjudgment motion. We conclude that the court’s sua sponte alteration of the alimony order from a lifetime award to a term of eight years was an abuse of discretion. Accordingly, we reverse that portion of the court’s July 13, 2010 order.

In addition to asking us to reverse the court’s sua sponte modification of the original alimony award, the defendant, citing to our decisions in Jaser v. Jaser, 37 Conn. App. 194, 655 A.2d 790 (1995), and Standish v. Standish, 40 Conn. App. 298, 670 A.2d 1330 (1996), asks that we order a new trial as to all financial orders. We conclude that such a remedy is not warranted in the present case.

“The rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.” Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 424, 479 A.2d 826 (1984). “[0]ur courts have utilized the mosaic doctrine as a remedial device that allows reviewing courts to remand cases for reconsideration of all financial orders even though the review process might reveal a flaw only in the alimony, property distribution or child support awards.” Casey v. Casey, 82 Conn. App. 378, 389 n.9, 844 A.2d 250 (2004). “Every improper order, however, does not necessarily merit a reconsideration of all of the trial court’s financial orders. A financial order is severable when it is not in any way interdependent with other orders and is not improperly based on a factor that is linked to other factors.” Smith v. Smith, 249 Conn. 265, 277, 752 A.2d 1023 (1999).

In Jaser and Standish, this court determined that the dissolution court improperly had modified multiple aspects of the original financial orders postjudgment, including aspects of the property distribution. We concluded that, in those cases, “[t]he singular implication to be drawn from the trial court’s willingness to modify the judgment is that the judgment was based on an incomplete analysis of the pertinent facts. . . . The symmetry and harmony of the tiles in the original design were so disturbed by the modification that we must reverse the original judgment and order a new trial.” (Citations omitted.) Jaser v. Jaser, supra, 37 Conn. App. 205; see also Standish v. Standish, supra, 40 Conn. App. 302. In the present case, the court only attempted to modify the length of time that alimony was to be paid. It did not attempt to alter any other aspect of the dissolution judgment, leaving unchanged the property distribution and all other financial orders. Our ruling restores the court’s original judgment, which the defendant conceded at oral argument constitutes the carefully crafted mosaic in the present case. We therefore decline the defendant’s invitation to remand the present matter for a new trial on all financial orders.

The judgment is reversed only as to the order that alimony shall terminate eight years from the date of the dissolution judgment and the case is remanded with direction to reinstate the award of lifetime alimony. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The defendant filed a motion for articulation asking, among other things, that the court provide the factual and legal basis for its modification of the alimony award from a lifetime award to an eight year term. The court initially denied the motion for articulation in its entirety, but later issued an articulation that appears to address the basis for its sua sponte modification order. The articulation provides: “The court carefully reconsidered the claims of the parties as well as the claims for relief and affidavits that had been submitted. The ages of the parties were also considered. The court also reconsidered the claim that the plaintiff had transferred a substantial part of his business to his nephew and was not making the same commitment to the existing business.”


text:
    STATE OF CONNECTICUT v. CHARLES MARSHALL STATE OF CONNECTICUT v. RICHARD MARSHALL
    (AC 32399)
    (AC 32403)
    Robinson, Espinosa and Pellegrino, Js.

      Argued October 25
    officially released December 27, 2011

      Kirstin B. Coffin, special public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Maureen Platt, state’s attorney, and Patrick J. Griffin, senior assistant state’s attorney, for the appellee (state).
   Opinion

ROBINSON, J.

The defendant, Charles Marshall, appeals from the trial court’s judgments of conviction and revocation of his probation, following a trial to the court, of two counts of burglary in the second degree in violation of General Statutes § 53a-102 (a) (2), two counts of burglary in the first degree in violation of General Statutes § 53a-101 (a) (1) and (a) (2), assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and two counts of violation of probation. On appeal, the defendant contends that: (1) there was insufficient evidence (a) to establish that he was guilty of assault because the state failed to disprove his claim of self-defense, (b) to convict him of burglary in the first degree for the burglary that occurred at 103 Waterville Street, and (c) to establish that he was the individual who committed the burglaries at 29 and 103 Waterville Street; and (2) the trial court abused its discretion in finding that he violated his probation. We affirm the judgments of the trial court.

The following facts, as found by the court, are relevant to the disposition of the defendant’s appeals. On the morning of July 26, 2007, the defendant entered the premises located at 29 Waterville Street in Waterbury with the intent to steal. The defendant proceeded to enter 103 Waterville Street with the intent to steal in the afternoon of July 26, 2007. The defendant entered the premises at both locations by prying open the doors with a screwdriver. The defendant also was armed with a tire iron, a dangerous instrument, during the commission of both of the burglaries. Luis “Tito” Infante, the son of the landlord of 103 Waterville Street, chased the defendant from the premises with a baseball bat. Tito, however, did not swing the bat at the defendant during the chase. While in flight from the burglary, the defendant hit Tito in the head with the tire iron, causing severe injury.

The defendant subsequently was arrested and charged with two counts of burglary in the second degree in violation of § 53a-102 (a) (2), two counts of burglary in the first degree in violation of § 53a-101 (a) (1) and (a) (2), assault in the first degree in violation of § 53a-59 (a) (1) and two counts of violation of probation. After a trial to the court, the court determined that the defendant had not acted in self-defense when he hit the victim. Thereafter, the court convicted the defendant of all charges, revoked his probation and imposed a total effective sentence of sixty-two and one-half years incarceration. These appeals followed.

I

The defendant contends that there was insufficient evidence (a) to establish that he was guilty of assault because the state failed to disprove his claim of self-defense, (b) to convict him of burglary in the first degree for the burglary that occurred at 103 Waterville Street and (c) to establish that he was the individual who committed the burglaries at 29 and 103 Waterville Street. We disagree.

We begin by setting forth the relevant standard of review. “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 of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable .and logical. . . . This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . . because this court has held that a [trier’s] factual inferences that support a guilty verdict need only be reasonable. . . .

“[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.” (Internal quotation marks omitted.) State v. Butler, 296 Conn. 62, 76-77, 993 A.2d 970 (2010).

A

The defendant’s first contention on appeal is that there was insufficient evidence to establish that he was guilty of assault because the state failed to disprove that in striking the victim he reasonably engaged in self-defense. The defendant contends that the state failed to disprove that when he swung the tire iron at the victim that he reasonably believed that the victim would use deadly force or inflict great bodily harm upon him. We disagree.

“The legal principles regarding a claim of self-defense are well settled. Self-defense is a justification defense pursuant to General Statutes § 53a-16 and is a complete defense to a charge of assault in the third degree in violation of [General Statutes] § 53a-61 (a) (1). See also General Statutes §§ 53a-12 (a) and 53a-19. In claiming self-defense, the defendant admits engaging in the otherwise illegal conduct but claims he legally was justified, and, therefore, his conduct was not criminal. . . . Under our Penal Code ... a defendant has no burden of persuasion for a claim of self-defense; he has only a burden of production. . . . Once the defendant has done so, it becomes the state’s burden to disprove the defense beyond a reasonable doubt. ... As these principles indicate, therefore, only the state has a burden of persuasion regarding a self-defense claim: it must disprove the claim beyond a reasonable doubt.” (Citation omitted; internal quotation marks omitted.) State v. Skelly, 124 Conn. App. 161, 166, 3 A.3d 1064, cert. denied, 299 Conn. 909, 10 A.3d 526 (2010).

“[T]he standard for reviewing sufficiency claims in conjunction with a justification offered by the defense is the same standard used when examining claims of insufficiency of the evidence.” (Internal quotation marks omitted.) State v. Wortham, 80 Conn. App. 635, 640, 836 A.2d 1231 (2003), cert. denied, 268 Conn. 901, 845 A.2d 406 (2004).

The following evidence produced at trial is relevant to the defendant’s claim. Brian Levin testified that at approximately 1:45 p.m. on the afternoon of July 26, 2007, he heard a loud crashing sound, “like somebody hitting against a garbage can.” Levin went outside and saw a young Hispanic male and an older black male, whom he later identified in a photographic array as the defendant, running past his driveway. The Hispanic male was yelling at the defendant, and the defendant was running with a crowbar in his hand. Levin noted that the defendant and the Hispanic male were approximately two and one-half houses away from him, and the defendant, “look[ed] back and seen that the Hispanic male was getting too close to him and he turned around and popped him in the back of the head with the crowbar.” The defendant hit the Hispanic male once, after which he fell to the ground, and the defendant then ran away. Levin claimed that the Hispanic male neither hit the defendant with the baseball bat nor swung the bat.

Jamal Trammell testified that on July 26, 2007, he saw a black male, whom Trammell later identified in a photographic array as the defendant, and a Hispanic male run past him on Waterville Street. The Hispanic male was running after the defendant, yelling that he was going to “ ‘f ” him up. Trammell believed that he was approximately 80 to 100 yards, or five to seven houses away from the two males at that point. Trammell testified that the Hispanic male swung the bat at the defendant before the defendant hit the victim. Trammell did not see the defendant holding the tire iron. Trammell approached the Hispanic male, who was lying on the ground, and noticed that the young man was bleeding from a hole in his head approximately the size of a quarter. He noticed a crowbar on the ground a few feet away from the victim.

The Waterbury police interviewed the defendant on July 26, 2007, after he waived his Miranda rights. The defendant provided a written statement to the police pertaining to the burglary and assault at 103 Waterville Street. The defendant’s written statement, which was admitted into evidence, provides in relevant part: “Today I broke into a house on the third floor. I was able to get in through a locked back stairway door and through the unlocked back door of the apartment. When I got inside, I got into a locked room. The room was like a storage room that had stuff that I could pawn to get some money for heroin. While I was in the apartment, a Puerto Rican guy saw me. I went out the back door and down the back stairs. I went and hid in an open garage that was behind the house. I was hiding behind a car in the garage when a different Puerto Rican guy found me hiding there. The guy had a baseball bat and I ran away. While I was trying to run away, he hit me in the back with the bat. I lost my balance and fell, but I was able to keep running without being hurt to stop. I had a metal pipe with me and I ran with it in my hand. I ran' down the street and the Puerto Rican guy was chasing me. I started walking after a little bit and the Puerto Rican guy was walking behind me. Then the Puerto Rican guy started running after me again. I started to run for a little while, but I got tired and stopped. The Puerto Rican guy ran up to me and I hit him in the head with the pipe I had. The Puerto Rican guy fell on the ground and I dropped the pipe. ...”

The defendant, however, gave conflicting testimony at trial. The defendant testified that on July 26, 2007, he went to 103 Waterville Street at approximately 1:30 p.m. because he believed the person who lived there hid heroin in the garage. The defendant testified that he went inside the garage to look for drugs, and “the little guy” came after him in the garage and hit him in the back with a baseball bat. The defendant claimed he spotted a pipe on the floor in the garage, picked it up and took off running with the “little guy” chasing after him and yelling threats. The defendant testified that the victim swung the baseball bat at him during the chase but that it did not make contact. The defendant claimed that he then threw the pipe at the victim, who fell to the ground, and that he then ran off. The defendant acknowledged that he provided a written statement to the police and that he signed the written statement, but he claimed at trial that he did not read the statement. In regard to the burglary at 29 Waterville Street, the defendant maintained that he was at home at approximately 11:30 a.m. and did not commit that offense.

The defendant’s primary contention is that the state failed to disprove that when the defendant swung the tire iron at the victim, he reasonably believed that the victim was about to inflict great bodily harm against him. The defendant maintains that he fled 103 Waterville Street and was being chased by an angry younger male with a baseball bat. As a result, he argues that he reasonably feared that the victim was about to inflict great bodily harm on him.

General Statutes § 53a-19 (a) provides in relevant part: “[A] person is justified in using reasonable physical force upon another person to defend himself . . . from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.” Thus, in order to invoke the defense of self-defense, one must reasonably believe that an individual is going to use deadly force or inflict great bodily harm against him.

On the basis of the evidence and the rational inferences that could be drawn therefrom, the court reasonably determined that the defendant did not have a subjective belief that deadly physical force was necessary. The defendant ran away from 103 Waterville Street, with the victim following in close proximity. The victim, however, did not take any action to illustrate an intention to inflict great bodily harm on the defendant. Levin testified that he was approximately two and one-half houses away from the two individuals running, and did not see the victim swing the baseball bat at the defendant. Rather, he witnessed the defendant stop running, turn around and swing the tire iron at the victim’s head. Although Trammell testified that he saw the defendant swing, the court reasonably could have concluded that he was at a much farther distance from the altercation, as evidenced by his testimony that he did not see the defendant carrying the tire iron. Furthermore, in discounting Trammel’s version, the court could have reasoned that Levin’s testimony is supported by the defendant’s written statement to the police. In that statement, the defendant explicitly stated that “[t]he Puerto Rican guy ran up to me and I hit him in the head with the pipe I had.” Nowhere in the defendant’s statement does he mention the victim swinging the baseball bat at him during the chase, even though he did explicitly mention that the victim hit him with the bat while in the garage at 103 Waterville Street. The defendant did not tell the police when he provided his written statement that he acted in self-defense, or that he was fearful of great bodily injury. As a result, there was sufficient evidence that the defendant did not have a subjective belief that deadly physical force was necessary.

Furthermore, we note that although the defendant testified that the victim swung the baseball bat at him and that the police did not take his statement accurately, the court discredited any exculpatory aspects of the defendant’s testimony. “[I]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. ... As such, the trial court is free to accept or reject, in whole or in part, the evidence presented by any witness, having the opportunity to observe the witnesses and gauge their credibility.” (Internal quotation marks omitted.) State v. Miller, 122 Conn. App. 631, 635, 999 A.2d 844 (2010). By virtue of his written statement and his trial testimony, the defendant provided conflicting accounts of what had occurred. The court therefore reasonably determined that the defendant was not a credible witness.

Even if the defendant did subjectively believe that the victim was about to use deadly force against him, such belief would be unreasonable. As outlined above, the victim did not demonstrate to the defendant that he was going to use deadly physical force. On the basis of the evidence, the court reasonably determined that the victim did not swing the bat at the defendant during the chase. The defendant’s own statement, as well as the testimony of Levin, demonstrates that the defendant stopped running and turned and struck the victim with the tire iron. Deadly force may only be used when the circumstances demonstrate that such force is reasonably necessary. On the basis of our review of the record, we conclude that the evidence was legally sufficient to support the court’s finding that the defendant did not act in self-defense.

B

The defendant next contends that there was insufficient evidence to convict him of burglary in the first degree under § 53a-101 (a) for the break-in at 103 Waterville Street. The defendant asserts two bases for this claim: first, that there was insufficient evidence to demonstrate that the defendant was armed with a dangerous instrument, and second, that there was insufficient evidence that the defendant injured anyone during the course of the burglary or in the immediate flight therefrom. We disagree.

The following evidence produced at trial is relevant to the defendant’s claim. Kevin Chamberland testified that at approximately 10:30 a.m. on July 26, 2007, he heard noises emanating from the second floor landing of 29 Waterville Street and, upon investigation, he encountered a man on the landing of the second floor whom he later identified in a photographic array as the defendant. Chamberland described the defendant as wearing a gray sweater or sweatshirt and baggy pants. He asked the defendant if he was a resident of the building, or knew any resident of the building, to which the defendant responded in the negative. Chamberland then asked the defendant to leave and walked him out of the house. A few minutes later, he again heard noises, and went to the second floor to investigate. He came across the defendant with one half of his body sticking out of the second floor window, using a screwdriver to scrape the vinyl siding off of the house. Chamberland again asked the defendant to leave and escorted him out of the back of the house.

Lourdes Hernandez testified that at approximately 11:20 a.m. on July 26, 2007, she opened the door of her bedroom on the second floor of 29 Waterville Street, where she found a man, whom Hernandez later identified in a photographic array as the defendant, in her living room going through her purse. Hernandez saw that the defendant had some type of tool in his pants, which she identified at trial as a tire iron. Hernandez described the defendant as wearing a yellow striped shirt and dark pants, and carrying a screwdriver.

Miguel Rios testified that he rented a room on the third floor of a house located at 103 Waterville Street in Waterbury. At approximately 1 p.m., Rios opened his bedroom door and noticed that one of the doors in the hallway was ajar. He turned on the light and saw a man, whom he later identified in a photographic array as the defendant. Rios described the defendant as wearing a short sleeve black shirt and blue jeans. The defendant was carrying a few bags, and, after being confronted by Rios, the defendant dropped the bags and ran out of the house.

Upon being told by Rios about the incident, Gregoria Infante and her sons Luis and Tito went up to the third floor to investigate. Luis testified that he then went downstairs and saw the defendant hiding behind one of the cars in the garage. Luis described the defendant as wearing dark clothes. Luis yelled at the defendant, and the defendant ran away, carrying a tire iron. Tito came out of the house with a bat, and despite being told by Luis to “leave it,” took off after the defendant.

Police investigations at both sites revealed evidence of forced entry. At 103 Waterville Street, there was damage to both exterior and interior doors, consistent with a flathead screwdriver. The damage at 29 Water-ville Street was also consistent with the use of a screwdriver. The size and scope of the damage was consistent at both locations.

Additionally, there was evidence that officers found the defendant, who was wearing a black shirt and jeans, on the front porch of a nearby house breathing heavily and sweating profusely. Six witnesses; Chamberland, Hernandez, Rios, Luis Infante, Levin and Trammel; viewed photographic arrays of possible suspects. Each of these witnesses positively identified the defendant.

First, the defendant maintains that there is insufficient evidence to demonstrate that he was armed with a dangerous instrument while committing the burglary. The defendant contends that his testimony that he found the pipe in the garage at 103 Waterville Street paired with the testimony that the damage to the door frames was consistent with a screwdriver and not with a tire iron demonstrates that he was not armed with a dangerous instrument at the time of the burglary.

Viewing the evidence in the light most favorable to sustaining the verdict, the court reasonably determined that the defendant was armed with a dangerous instrument, here a tire iron, when he committed the burglary at 103 Waterville Street. Hernandez identified the defendant as the individual who was in her apartment at 29 Waterville Street on July 26, 2007. She testified that the defendant was carrying a tool in his pants, which she identified in court as the tire iron later recovered by police. In its decision, the court found Hernandez’ testimony concerning the tire iron to be credible. “[I]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony.” (Internal quotation marks omitted.) State v. Miller, supra, 122 Conn. App. 635. Rios also identified the defendant as the individual who was on the third floor of 103 Waterville Street. Upon fleeing the scene of 103 Waterville Street, Rios witnessed the defendant carrying a tire iron. On the basis of the testimony of Hernandez, the court reasonably could find that the defendant had a tire iron on his person on the morning of July 26, 2007. The court could then reasonably infer that the defendant also had the tire iron on his person when he entered 103 Waterville Street, as the defendant was seen with a tire iron when fleeing the scene.

The defendant also asserts that there was insufficient evidence to demonstrate that he injured anyone during the course of the burglary, or in the immediate flight therefrom. The defendant maintains that because the altercation between the defendant and the victim took place approximately one-quarter mile from 103 Water-ville Street, that he had terminated any burglary attempt by the time he allegedly injured the victim. We disagree.

General Statutes § 53a-101 provides in relevant part that “(a) A person is guilty of burglary in the first degree when ... (2) such person enters or remains unlawfully in a building with intent to commit a crime therein and, in the course of committing the offense, intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone . . . .” General Statutes § 53a-101 (b) specifically provides that “[a]n act shall be deemed ‘in the course of committing’ the offense if it occurs in an attempt to commit the offense or flight after the attempt or commission.”

In State v. Maxwell, 29 Conn. App. 704, 706, 618 A.2d 43 (1992), cert. denied, 225 Conn. 904, 621 A.2d 287, cert. denied, 509 U.S. 930, 113 S. Ct. 3057, 125 L. Ed. 2d 740 (1993), after the defendant attempted to enter the victim’s house unlawfully, the victim confronted the defendant in front of the residence. The two individuals engaged in a physical struggle that proceeded to an area beyond the victim’s property. Id., 707. The defendant then intentionally assaulted the victim. Id. The defendant was convicted of burglary in the first degree under § 53a-101 (a) (2). Id., 705. On appeal, the defendant contended that the bodily injury occurred after the defendant had terminated his burglary attempt, and accordingly the assault was a separate and distinct occurrence. Id., 710-11. This court upheld the defendant’s conviction, maintaining that under § 53a-101 (a) (2) “to conclude that, by the simple expedient of running beyond the property line and abandoning his attempt to enter the building, a defendant was no longer in flight from his attempt, would create the kind of bizarre result that we are mandated to avoid in statutory construction.” Id., 712.

On the basis of the evidence, the court reasonably determined that the defendant struck the victim when he was in flight from the commission of the burglary. Simply because the defendant ran beyond the property line of 103 Waterville Street is not sufficient to demonstrate that the defendant was not in flight from the commission of a burglary. Rios testified that the defendant was on the third floor of 103 Waterville Street. The defendant then fled to the backyard, but was spotted by Luis Infante. The defendant then tried to escape from the scene of the burglary only to be chased by the victim. The defendant was running in a direct, unbroken route from 103 Waterville Street when he turned and struck the victim. Accordingly, the court reasonably determined that the defendant was in flight from the burglary when he struck the victim. On the basis of our review of the record, we conclude that the evidence was legally sufficient to support the court’s finding that the defendant was armed with a dangerous instrument when he entered 103 Waterville Street, and that he injured the victim while in immediate flight from the commission of the burglary.

C

The defendant next contends that there was insufficient evidence that he was the individual who committed the burglaries at 29 and 103 Waterville Street. The defendant argues that the cumulative force of the evidence failed to demonstrate beyond a reasonable doubt that he perpetrated the burglaries due to the conflicting descriptions of the suspect and because he was not found with the screwdriver allegedly used in the burglaries. We disagree.

Various witnesses provided conflicting statements concerning what the suspect was wearing. Chamberland described the suspect as wearing a sweater or sweatshirt and baggy pants, Hernandez described the suspect as wearing a yellow striped shirt and dark pants, Rios described the suspect as wearing a black short sleeve shirt and jeans and Luis Infante described the suspect as wearing dark clothes. Each of these witnesses, however, identified the defendant in a photographic array at the police station on the day of the burglary as the individual who burglarized 29 Waterville Street and 103 Waterville Street.

Furthermore^ the defendant was apprehended shortly after the assault had occurred, and he was wearing clothes that matched the description given by both Rios and Luis Infante. The defendant also admitted in his written statement that he had broken into the third floor at 103 Waterville Street. On the basis of this evidence, the court reasonably found that the defendant was the individual who committed the burglary at 103 Waterville Street.

Although Chamberland and Hernandez’ description of the suspect’s clothing varies from what the defendant was wearing when apprehended, there was a time period in which the defendant is unaccounted for after the burglary at 29 Waterville Street. It is reasonable to infer that the defendant wore different clothing to each house on that day. Furthermore, the defendant was identified by both Chamberland and Hernandez as the individual who burglarized 29 Waterville Street. Moreover, the damage to the premises of 29 Waterville Street was consistent with the damage to 103 Waterville Street, and the defendant admitted to breaking into the third floor of 103 Waterville Street, and was spotted with a screwdriver that morning. Although the defendant did not have a screwdriver on his person when he was apprehended, there is enough evidence for the court to find that the defendant was the individual who committed the burglaries at issue. On the basis of our review of the record, we conclude that the evidence was legally sufficient to support the court’s finding that the defendant was the individual who committed the burglaries at 29 Waterville Street and 103 Waterville Street.

II

Lastly, the defendant contends that the court abused its discretion in finding that he violated his probation. The defendant maintains that because there was insufficient evidence that he committed the burglaries and because he acted in self-defense when he assaulted the victim, the court’s findings that the defendant had committed the burglaries and the assault while on probation were clearly erroneous.

There is no dispute that the defendant was on probation on July 26, 2007, and that one of the conditions of his probation was that he refrain from violating any state criminal law. Because we have concluded that there was sufficient evidence to demonstrate that the defendant did not act in self-defense and that the defendant committed the burglaries at 103 Waterville Street and 29 Waterville Street, the court did not abuse its discretion in finding that the defendant violated his probation.

The judgments are affirmed.

In this opinion the other judges concurred.

       Charles Marshall and Richard Marshall are the same individual, and the two matters were consolidated and tried in one proceeding.

       The landlord of 103 Waterville Street had two sons who are both named Luis Infante. The younger son is known by the nickname Tito. Therefore, the younger son will be referred to interchangeably as Tito or the victim.

       The defendant entered guilty pleas to two part B informations charging him with being a persistent serious felony offender in violation of General Statutes § 53a-40 (c) and the trial court enhanced the defendant’s sentences accordingly.

       See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       General Statutes § 53a-101 (a) provides that “[a] person is guilty of burglary in the first degree when (1) such person enters or remains unlawfully in a building with intent to commit a crime therein and is armed with explosives or a deadly weapon or dangerous instrument, or (2) such person enters or remains unlawfully in a building with intent to commit a crime therein and, in the course of committing the offense, intentionally, knowingly or recklessly inflicts or attempts to inflict bodily ipjury on anyone, or (3) such person enters or remains unlawfully in a dwelling at night with intent to commit a crime therein.”

       On cross-examination, Hernandez noted that she was nervous when she gave her statement to the police and did not mention that the defendant had a tool on his person. Instead, she only mentioned that the defendant had a tool when preparing for the case with the prosecutor.


author: PER CURIAM.

text:
    NSS RESTAURANT SERVICES, INC. v. WEST MAIN PIZZA OF PLAINVILLE, LLC, ET AL.
    (AC 32626)
    DiPentima, C. J., and Robinson and Alvord, Js.

      Argued October 28
    officially released December 27, 2011

      C. Scott Schwefel, for the appellant (plaintiff).

      Robert F. Cohen, with whom, on the brief, was Sarah Ann Cohen, for the appellees (named defendant et al.).
   Opinion

PER CURIAM.

The plaintiff, NSS Restaurant Services, Inc., appeals from the judgment of the trial court rendered in favor of the defendants West Main Pizza of Plainville, LLC (West Main Pizza), and Agnes Kaleodis. On appeal, the plaintiff claims that the court improperly found that an inter-creditor agreement (agreement) between the parties was not supported by consideration. We disagree and, accordingly, affirm the judgment of the trial court.

The court found the following facts. Kaleodis, along with her husband, Peter Kaleodis, owned and operated West Main Pizza. On May 6,2004, the plaintiff purchased the restaurant business for $205,000. The terms of this purchase included a note payable from the plaintiff to West Main Pizza in the amount of $155,000.

In April, 2005, the plaintiff sold the restaurant business to St. Pierre & Badal, LLC (Badal), for $205,000. As part of the terms of this transaction, Badal assumed payment of the note issued by the plaintiff to West Main Pizza. The amount of this note had been reduced to $134,000. Additionally, the plaintiff received anote from Badal in the amount of $55,491.25 and cash in the amount of $15,570.23. The closing of this transaction occurred on April 30, 2005. At this time, West Main Pizza and the plaintiff executed the agreement. The purpose of the agreement was “to further clarify and to further perfect and protect [the parties’] respective rights” regarding the assets and other inventory of Badal securing the two notes.

Paragraph 3 (b) of the agreement provides: “Subject to the provisions of subsection (c) below, all realizations upon the Collateral [that secured -the two notes] shall be first distributed in favor of [the defendants] until all amounts owed to [the defendants] under the [$134,000 note] are paid in full, thereafter; any additional proceeds remaining upon a liquidation and subsequent realization shall then be distributed to [the plaintiff] up to the amount owed. After such distribution, any amount still owed to [the plaintiff] pursuant to the [$55,491.25 note] will be directly assumed by [the defendants], pursuant to terms of [the $55,491.25 note], and [the defendants] will execute and deliver to [the plaintiff] such documentation necessary to properly evidence such assumption . . . and file such documents necessary to perfect [the plaintiffs] security interest.” The agreement further provided a six month grace period before the payments from the defendants to the plaintiff would commence. Peter Kaleodis, on behalf of West Main Pizza, Agnes Kaleodis, individually, the president of the plaintiff and a member of Badal all signed the agreement.

At some point, Badal ceased payment on the note to West Main Pizza and “walked away from the business.” In a complaint dated August 11, 2009, the plaintiff alleged that, pursuant to the agreement, West Main Pizza had agreed to assume the obligation of the note from Badal payable to the plaintiff. It further claimed that the amount due on this note was $35,976.76. The defendants filed a special defense that there “was a failure of consideration for the [agreement] in that there was no tangible benefit to the [defendants].”

On August 4, 2010, the court issued its memorandum of decision. It found that “[n]o consideration of any kind was received by the defendants for the benefits received by the [plaintiff] set out in the [agreement] of the parties.” Accordingly, it determined that the agreement failed for lack of consideration. The court subsequently articulated its decision and stated that no credible evidence was presented that the defendants received payment or benefit for the transfer of the repayment obligation from Badal to the defendants. It further explained that “no credible evidence was presented to show that the . . . defendants received anything of value for participating in the [agreement].”

On appeal, the plaintiff claims that the court improperly found that the agreement was not supported by consideration. Specifically, it argues that the court failed to consider that West Main Pizza’s “ability to reenter the premises, seize equipment, and run a restaurant business, without interference from [the plaintiff], is something of value.” It further contends that under Connecticut law, promises that do not entail monetary payment may constitute valid consideration.

We begin our analysis by setting forth the relevant legal principles and our standard of review. “It almost goes without saying that consideration is [t]hat which is bargained-for by the promisor and given in exchange for the promise by the promisee .... We also note that [t]he doctrine of consideration does not require or imply an equal exchange between the contracting parties. . . . Consideration consists of a benefit to the party promising, or a loss or detriment to the party to whom the promise is made. . . . Whether an agreement is supported by consideration is a factual inquiry reserved for the trier of fact and subject to review under the clearly erroneous standard.” (Internal quotation marks omitted.) Martin Printing, Inc. v. Sone, 89 Conn. App. 336, 345, 873 A.2d 232 (2005); see also Viera v. Cohen, 283 Conn. 412, 440-41, 927 A.2d 843 (2007). Put another way, “[u]nder the law of contract, a promise is generally not enforceable unless it is supported by consideration.” (Internal quotation marks omitted.) Thibodeau v. American Baptist Churches of Connecticut, 120 Conn. App. 666, 676, 994 A.2d 212, cert. denied, 298 Conn. 901, 3 A.3d 74 (2010). Last, we are mindful that “[i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. ... On appeal, we will give the evidence the most favorable reasonable construction in support of the verdict to which it is entitled.” (Internal quotation marks omitted.) Weyel v. Catania, 52 Conn. App. 292, 295, 728 A.2d 512, cert. denied, 248 Conn. 922, 733 A.2d 846 (1999).

The plaintiff argues that the intent of the agreement between the parties was “to allow West Main [Pizza] to re-enter the premises in the event of default by Badal without any interference from [the plaintiff] or any claim to the assets and upon seizure of the equipment, reopen the business and after six months, begin the repayment of the obligation to [the plaintiff]. ” The plaintiff further contends that West Main Pizza’s authority to evict Badal, regain possession of the premises and equipment and reopen the business was set forth in the agreement. The plaintiff concludes that the consideration in this case, therefore, was the ability of the defendants to reclaim the premises and business in exchange for assuming Badal’s note to the plaintiff.

The fatal flaw in the plaintiff’s appellate argument is that the court never made the specific factual findings relied upon by the plaintiff. Specifically, the court made no findings regarding anything in the agreement that permitted the defendants to reclaim the premises and business in exchange for assuming Badal’s note to the plaintiff. The trial court found that “the reasonable interpretation of the agreement is that West Main Pizza in this situation was to receive full payment of the [plaintiffs] note before any payments are due to it under the [agreement].” The court did not find that the agreement permitted the defendants to reclaim the business in exchange for becoming liable on the Badal note to the plaintiff. Simply put, the plaintiff relies solely on the testimony adduced at trial to support its claim of consideration found in the agreement. This court, however, is bound by the actual findings made by the trial court. The court expressly found: “No consideration of any kind was received by the defendants for the benefits received by the [plaintiff] set out in the [agreement].” The plaintiff has failed to persuade us that this finding was clearly erroneous. We conclude, therefore, that the court properly rendered judgment in favor of the defendants.

The judgment is affirmed.

       The plaintiff also named St. Pierre & Badal, LLC, Shamshon Badal Kavski and Amy M. St. Pierre as defendants. The plaintiff withdrew its claims against these parties, and we therefore refer to West Main Pizza arid Kaleodis as the defendants in this appeal.

       The plaintiffs complaint also set forth a claim of unjust enrichment against the defendants. The court did not specifically address this cause of action in its memorandum of decision. In its motion for an articulation, the plaintiff requested that the court address this claim. The articulation, however, made no mention of the unjust enrichment issue, and the plaintiff failed to file a motion for review of the court’s articulation. We note that the plaintiff does not argue on appeal that the court improperly failed to consider its unjust enrichment claim.

       We note that the plaintiff does not argue that it was clearly erroneous for the court not to consider the testimony regarding the events and actions of the parties after Badal abandoned the restaurant business. Its argument is limited solely to its assumption that the agreement authorized the defendants to reclaim and reopen the business, and the court improperly failed to find that this was the consideration required for a valid contract. As we already have indicated, the court never found the underlying facts necessary for this argument to succeed.


author: SCHALLER, J.

text:
    MARGARET A. MUELLER v. ISIDORE TEPLER ET AL.
    (AC 32489)
    Lavine, Bear and Schaller, Js.

      Argued September 16
    officially released December 27, 2011

      Sean K. McElligott, with whom, on the brief, was Joshua D. Koskoff, for the appellant (plaintiff Charlotte Stacey).

      Eric J. Stockman, with whom, on the brief, was Simon I. Allentuch, for the appellees (defendant Ms Wertheim et al.).
   Opinion

SCHALLER, J.

The plaintiff Charlotte Stacey appeals from the judgment of the trial court rendered in favor of the defendants, Ms Wertheim, a gynecologic oncologist and surgeon, and Ms Wertheim, M.D., LLC, following the granting of a motion to strike counts six and eight of the third amended complaint. The plaintiff claims that the trial court erred in concluding that the allegations regarding her relationship with Margaret A. Mueller, her same sex domestic partner, were insufficient to support a claim for loss of consortium. We affirm the judgment of the trial court.

The plaintiff alleged the following facts in her third amended complaint. In August, 2001, Mueller was referred to Wertheim after testing by her gynecologist indicated that she had cancer. In October, 2001, Wertheim performed surgery to remove several cancerous tumors from Mueller. These tumors were examined by a pathologist, who identified the cancer as pseudomyxoma peritonei, a cancer of the appendix. Wertheim either failed to review the pathology report or misinterpreted its findings. As a result of this negligence, Mueller was mistakenly diagnosed with ovarian cancer. Mueller remained under the care of Wertheim until March 5, 2004. Although the error was discovered in April, 2005, Mueller’s cancer had progressed to a stage where some of the tumors no longer could be removed surgically.

On January 10,2006, Mueller commenced the present action against the defendants seeking recovery for medical malpractice. The third amended complaint, dated November 19, 2007, alleges, in relevant part, that the defendants are liable to the plaintiff for loss of consortium. In support of these claims, the amended complaint contains the following allegations regarding the plaintiffs relationship with Mueller: (1) “At all times since June, 1985, [the plaintiff and Mueller] have been domestic partners and have lived together as partners for the past twenty-one years”; (2) “On or about November 12, 2005, [the plaintiff and Mueller] were joined in a civil union under Connecticut’s civil union statute”; and (3) “Since 1985, [the plaintiff and Mueller] . . . have supported each other both financially and emotionally.” Significantly, the complaint does not allege that the plaintiff and Mueller would have formalized their relationship before March 5,2004, the date Mueller left the defendants’ care, had they had been allowed to do so under state law.

On December 6, 2007, the defendants filed a motion to strike the plaintiffs loss of consortium claims. In this motion, the defendants argued that the plaintiff and Mueller “had not entered into a legal civil union/ marriage prior to or during the dates of the alleged negligent acts [and therefore the plaintiff] cannot recover for loss of consortium . . . .” The plaintiff filed an objection to this motion on December 14, 2007. In support of this objection, the plaintiff argued that “because civil unions were unavailable at the time . . . Mueller was injured, [the plaintiff] states a valid claim for loss of consortium against [the] defendants.”

On February 11, 2008, the trial court granted the defendants’ motion to strike, stating: “I simply feel that the defendants are quite correct in pointing out that a consortium claim is not sustainable by people who are not either in a legal marriage or in a legal civil union at the time of the wrong.” On July 28,2008, the defendants filed a motion seeking judgment on those counts pursuant to Practice Book § 10-44. The motion was granted by the court on August 20, 2008. The plaintiff filed a notice of intention to appeal this judgment pursuant to Practice Book § 61-5 on August 29, 2008. On July 2, 2010, the jury returned a verdict in favor of Mueller’s estate on the claims of medical malpractice. The plaintiff filed the present appeal on July 22, 2010.

On appeal, the plaintiff claims that the trial court improperly granted the defendants’ motion to strike her claims for loss of consortium. Specifically, she argues that counts six and eight of the third amended complaint state valid claims for loss of spousal consortium because, although she was not married to Mueller before the defendants’ negligent actions occurred, she and Mueller would have formalized their relationship, but for the unconstitutional deprivation of their right to do so under the provisions of state law existing at that time. We conclude that the plaintiffs argument fails because she did not allege this additional fact in her third amended complaint.

We begin our analysis by setting forth the relevant standard of review. “In an appeal from ajudgment granting a motion to strike, we operate in accordance with well established rules. ... A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court. As a result, our review of the [trial] court’s ruling is plenary. . . . We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. . . . Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, we read the allegations broadly . . . rather than narrowly. . . . If facts provable in the complaint would support a cause of action, the motion to strike must be denied.” (Citations omitted; internal quotation marks omitted.) Sturn v. Harb Development, LLC, 298 Conn. 124, 129-30, 2 A.3d 859 (2010).

Loss of spousal consortium was first recognized as a viable cause of action under this state’s law in Hopson v. St. Mary’s Hospital, 176 Conn. 485, 493, 408 A.2d 260 (1979). In that case, our Supreme Court overruled Marri v. Stamford Street R. Co., 84 Conn. 9, 78 A. 582 (1911), and held that “either spouse has a claim for loss of consortium shown to arise from a personal injury to the other spouse caused by the negligence of a third person . . . .” Hopson v. St. Mary’s Hospital, supra, 496. In reaching this conclusion, our Supreme Court defined the concept of “consortium” as “the services of the wife, the financial support of the husband, and the variety of intangible relations which exist between spouses living together in marriage.” Id., 487.

In Gurliacci v. Mayer, 218 Conn. 531, 564, 590 A.2d 914 (1991), our Supreme Court held that a claim for loss of spousal consortium cannot be maintained when the plaintiff was not married to the victim at the time the underlying tort occurred. In that case, Louis Gurliacci, sought recovery for loss of consortium after his then fiancée, Debra Gurliacci, was injured in an automobile accident caused by the negligence of another driver. Id., 534, 561. At the time of the accident, the two were engaged and cohabiting. Id., 561. Louis Gurliacci argued that “a person who is not married to the victim of the tort at the time of the injury may, upon marriage, bring a claim for loss of consortium.” Id., 563. Our Supreme Court disagreed, stating: “the formal marriage relation forms the necessary touchstone to determine the strength of commitment between the two individuals which gives rise to the existence of consortium between them in the first instance. ... [A] cause of action for loss of consortium does not exist where the injury occurred prior to the marriage of the parties.” (Citation omitted; internal quotation marks omitted.) Id., 564.

The plaintiff argues that departure from the rule set forth in Gurliacci is appropriate under the facts of the present case because she would have been married to Mueller at the time of the underlying tort but for the unconstitutional deprivation of her right to do so. See Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 149, 957 A.2d 407 (2008). Even if we were to assume that a complaint that includes such an allegation states a legally sufficient claim for loss of consortium, the plaintiff did not plead this fact in the third amended complaint. Although the plaintiff pleaded that she was in a stable relationship with Mueller, lived with her for many years, supported her financially and entered into a civil union with her one and one-half years after the tortious conduct had occurred, these allegations, even when construed in the light most favorable to the plaintiff, do not allege that the couple would have formalized their relationship before the defendants’ negligent acts ceased on March 5, 2004. Absent such an allegation, the plaintiffs claim is functionally equivalent to that presented in Gurliacci. Accordingly, we conclude that the trial court did not err in granting the defendants’ motion to strike the sixth and eighth counts of the third amended complaint.

The judgment is affirmed.

In this opinion the other judges concurred.

       The original complaint contained only allegations of medical malpractice by the named plaintiff, Margaret A. Mueller. The complaint subsequently was amended to include a loss of consortium claim by Stacey. Because the issues on appeal pertain solely to Stacey’s claims of loss of consortium, we refer to her as the plaintiff hereinafter.

       Although Isidore Tepler and Hematology Oncology, P.C., initially were named as defendants in the underlying action, the record indicates that the claims against them subsequently were settled. Because the issues on appeal do not relate to these parties, all references to the defendants hereinafter are limited to Iris Wertheim and Iris Wertheim, M.D., LLC.

       Mueller died on January 10, 2009. On April 13, 2009, the trial court granted a motion substituting the executrix of the estate as a plaintiff.

       These claims are set forth in counts six and eight of the third amended complaint. Count six is directed against Iris Wertheim. Count eight is directed against Iris Wertheim, M.D., LLC.

       We note that the law first afforded the plaintiff the ability to formalize her relationship with Mueller in 2005, under our civil union law. See General Statutes (Sup. 2006) §§ 46b-38aa through 46b-38oo; see also Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 148, 957 A.2d 407 (2008). The third amended complaint alleges that the defendants ceased caring for Mueller on March 5, 2004. The effective date of the civil union statute was October 1, 2005. Public Acts 2005, No. 05-10, § 1.

       The court also struck counts two and four of the third amended complaint. These counts contained the plaintiffs loss of consortium claims against Isidore Tepler and Hematology Oncology, P.C. Because these defendants are not parties to the present appeal; see footnote 2 of this opinion; these counts are not at issue.

       The plaintiff did not replead counts six and eight after the motion to strike was granted. See Practice Book § 10-44.

       Although not reached in the present case, we note that the merits of this issue were addressed by the Massachusetts Supreme Judicial Court in Charron v. Amaral, 451 Mass. 767, 889 N.E.2d 946 (2008). In that case-, the court concluded that its recognition of same sex marriage in Goodridge v. Dept. of Public Health, 440 Mass. 309, 798 N.E.2d 941 (2003), was not to be applied retroactively and, accordingly, affirmed the trial court’s award of summary judgment to the defendants on the plaintiffs loss of consortium claim. Charron v. Amaral, supra, 773. In reaching this decision, the court stated that affording marital rights to same sex couples retroactively in this context “could open numbers of cases in all areas of law to the same argument.” Id. Indeed, as noted by Chief Justice Marshall in her concurrence: “[T]he relief the plaintiff seeks — recognition of a loss of consortium claim nunc pro tunc — would erase the bright line between civil marriage and other forms of relationship that has heretofore been carefully preserved by the [¡legislature and our prior decisions .... Granting such relief would create in effect a common-law or de facto quasi marital status that would promote litigation, permit judges to select from among marital benefits to which quasi marital couples might or might not be entitled, create uncertainty in the private as well as the public sphere ab out who is (or was) quasi married and for what purpose, and undercut the [(legislature's role in defining the qualifications and characteristics of civil marriage.” Id., 775-76.

       This conclusion also forecloses the plaintiffs argument that the trial court’s decision to grant the defendants’ motion to strike violated her right under the equal protection guarantees of the Connecticut constitution. Because the plaintiffs allegations are identical to those set forth by the heterosexual plaintiff in Gurliacci and because the disposition of these cases is the same, the plaintiff is unable to demonstrate that she was treated differently because of her sexual orientation. See Brooks v. Sweeney, 299 Conn. 196, 219, 9 A.3d 347 (2010) (“[t]he requirement imposed [on] [p]laintiffs claiming an equal protection violation [is that they] identify and relate specific instances [in which] persons situated similarly in all relevant aspects were treated differently” [emphasis in original; internal quotation marks omitted]). Neither Louis Gurliacci nor the plaintiff here alleged that they were married to the respective injured party at the time of the alleged negligent act.