author: PER CURIAM.

text:
    IN RE GIOVANNI C. ET AL.

    (AC 31150)
    DiPentima, Harper and Borden, Js.
    Argued February 17
    officially released March 30, 2010

      Chris Oakley, for the appellant (respondent mother).

      John E. Tucker, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney

      general, ancLS\¿.s<m T. Pearlman, assistant attorney general, for the appellee (petitioner).

      Robert W. Lewonka, for the minor children.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

PER CURIAM.

The respondent mother appeals from the judgments of the trial court terminating her parental rights with respect to three of her minor children. On appeal, the respondent challenges the court’s findings, made pursuant to General Statutes § 17a-112, that (1) she failed to achieve the requisite degree of personal rehabilitation and (2) the petitioner, the commissioner of children and families, had made reasonable efforts at reunification. She further claims that the court made improper evidentiary rulings and drew an improper adverse inference. Finally, the respondent claims that the court improperly considered her religious beliefs and that the petitioner violated her first amendment right to raise her children in her own religion. We affirm the judgments of the trial court.

Section 17a-112 (j) provides in relevant part that a court may grant a petition for termination of parental rights only if it finds by clear and convincing evidence that the department of children and families has made reasonable efforts of reunification or that the respondent is unable or unwilling to benefit from such efforts and that one of seven statutory grounds for termination exists. See General Statutes § 17a-112 (k). The standard of our review of a termination of parental rights judgment is well settled. We review the court’s findings to determine if they are clearly erroneous. In re Jorden R., 293 Conn. 539, 558, 979 A.2d 469 (2009).

Our standard of review as to the evidentiary rulings is similarly well settled. “Unless an evidentiary ruling involves a clear misconception of the law, the [t]ria! court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evi-dentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling . . . .” (Internal quotation marks omitted.) Id., 566.

We have examined the record and briefs and have considered the arguments of the parties. The thorough and well reasoned memorandum of decision sets forth detailed findings of fact that find support in the record and are neither clearly erroneous nor contrary to the law. See id., 558-59. The challenged evidentiary rulings were within the proper exercise of the court’s discretion. As to the constitutional claim, we conclude that the record is inadequate for a review on the merits.

The judgments are affirmed.

       The father also appealed from the judgments terminating his rights with respect to these three children. See In re Giovanni C., 120 Conn. App. 277, 991 A.2d 638 (2010).

       This constitutional claim was not raised before the trial court, and the respondent seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Under Golding, a party “can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the [respondent] of a fair trial; and (4) if subject to harmless error analysis, the [petitioner] has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id. In the present case, however, the respondent’s claim fails under the first prong of Golding because the record is inadequate for review. “The [respondent] bears the responsibility for providing a record that is adequate for review of his claim of constitutional error. If the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred, we will not attempt to supplement or reconstruct the record, or to make factual determinations, in order to decide the [respondent’s] claim.” (Internal quotation marks omitted.) State v. Riggsbee, 112 Conn. App. 787, 791-92, 963 A.2d 1122 (2009).


source: Caselaw Access Project

license: Public Domain

text:
    IN RE GIOVANNI C. ET AL.

    (AC 31151)
    DiPentima, Harper and Borden, Js.
    Argued February 17
    officially released March 30, 2010

      Sam Christodlous, for the appellant (respondent father).

      John E. Tucker, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

      Robert W. Lewonka, for the minor children.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

PER CURIAM.

The respondent, who is the father of the three children involved in this termination of parental rights case, Giovanni C., Wesley C., and Ravan, C., appeals from the judgments of the trial court terminating his parental rights as to the three children. The respondent’s sole claim on appeal is that the burden of persuasion by clear and convincing evidence as used in Connecticut and as applied by the trial court in this case “does not meet the requirements of the constitutional due process clause of the fourteenth amendment required by the United States constitution as set forth by the [United States] Supreme Court in Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982).” More specifically, the respondent contends that Connecticut’s formulation of the clear and convincing evidence standard falls short of federal constitutional requirements because it does not contain language similar to that used by the United States Supreme Court in describing the standard in Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 110 S. Ct. 2841, 111 L. Ed. 2d 224 (1990). We decline to consider this claim and, accordingly, affirm the judgments of the trial court.

The petitioner, the commissioner of children and families, brought these petitions for termination of parental rights, alleging that the children had been found in a prior proceeding to have been neglected or uncared for and that the respondent had failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time he could assume a responsible position in the lives of the children. After a full trial, the parties filed posttrial briefs. In his posttrial brief, the respondent cited applicable Connecticut precedents defining the contours of the clear and convincing evidence standard and argued that the evidence adduced did not meet that standard. He did not, however, raise the claim that the Connecticut standard for clear and convincing evidence did not meet federal constitutional requirements. The respondent, quoting Dacey v. Connecticut Bar Assn., 170 Conn. 520, 537, 368 A.2d 125 (1976), instead asserted that the clear and convincing evidentiary standard, as applied in termination of parental rights cases, “is appropriate . . . provided [that] the evidence presented leads to a ‘reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.’ ”

Thereafter, the court issued a lengthy and detailed memorandum of decision finding that the facts alleged had been proven by clear and convincing evidence. In the course of its memorandum of decision, the court devoted one section to the standard of clear and convincing evidence. It quoted specifically from our Supreme Court’s decision in Miller v. Commissioner of Correction, 242 Conn. 745, 794-95, 700 A.2d 1108 (1997): “The clear and convincing standard of proof is substantially greater than the usual civil standard of a preponderance of the evidence, but less than the highest legal standard of proof beyond a reasonable doubt. It is sustained if the evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist. . . . State v. Bonello, 210 Conn. 51, 66, 554 A.2d 277, cert. denied, 490 U.S. 1082, 109 S. Ct. [2103,104] L. Ed. 2d [664] (1989).

“Although we have characterized this standard of proof as a middle tier standard; J. Frederick Scholes Agency v. Mitchell, 191 Conn. 353, 358, 464 A.2d 795 (1983); and as an intermediate standard; State v. Davis, [229 Conn. 285, 293, 641 A.2d 370 (1994)]; between the ordinary civil standard of a preponderance of the evidence, or more probably than not, and the criminal standard of proof beyond a reasonable doubt, this characterization does not mean that the clear and convincing standard is necessarily to be understood as lying equidistant between the two. Its emphasis on the high probability and the substantial greatness of the probability of the truth of the facts asserted indicates that it is a very demanding standard and should be understood as such .... We have stated that the clear and convincing evidence standard should operate as a weighty caution upon the minds of all judges, and it forbids relief whenever the evidence is loose, equivocal or contradictory. . . . Lopinto v. Haines, 185 Conn. 527, 539, 441 A.2d 151 (1981).” (Emphasis in original; internal quotation marks omitted.) The court also cited several other Connecticut cases that articulate the same standard: Notopoulos v. Statewide Grievance Committee, 277 Conn. 218, 226, 890 A.2d 509, cert. denied, 549 U.S. 823, 127 S. Ct. 157, 166 L. Ed. 2d 39 (2006); In re Anthony H., 104 Conn. App. 744, 756, 936 A.2d 638 (2007), cert. denied, 285 Conn. 920, 943 A.2d 1100 (2008); Eberhardt v. Imperial Construction Services, LLC, 101 Conn. App. 762, 767, 923 A.2d 785, cert. denied, 284 Conn. 904, 931 A.2d 263 (2007); Chernick v. Johnston, 100 Conn. App. 276, 280, 917 A.2d 1042, cert. denied, 282 Conn. 919, 925 A.2d 1101 (2007); and In re Cheyenne A., 59 Conn. App. 151, 158-59, 756 A.2d 303, cert. denied, 254 Conn. 940, 761 A.2d 759 (2000). Having determined that the evidence met this demanding standard, the court, accordingly, rendered judgments granting the petitions. The respondent did not move for reconsideration or for articulation, or in any other way bring his constitutional claim to the attention of the court. This appeal followed.

In his appellate brief, the respondent does not seek to prevail under state v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), which lays out the requirements for prevailing on appeal on a constitutional claim that was not raised in the trial court. His appellate brief does not cite or mention Golding and does not address the requirements set forth therein.

This record makes clear, therefore, that the respondent is not entitled to raise his constitutional claim in this court. “The fact that [a respondent] has argued [that a] claim is one of constitutional magnitude does not, alone, satisfy the requirements of Golding. [A respondent’s] failure to address the four prongs of Golding amounts to an inadequate briefing of the issue and results in the unpreserved claim being deemed abandoned. See [State v. Barnett, 53 Conn. App. 581, 598, 734 A.2d 991, cert. denied, 250 Conn. 918, 738 A.2d 659 (1999)]; State v. Rodriguez, 44 Conn. App. 818, 823, 692 A.2d 846, cert. denied, 242 Conn. 902, 697 A.2d 363 (1997). State v. Laracuente, 57 Conn. App. 91, 94, 749 A.2d 34, cert. denied, 253 Conn. 923, 754 A.2d 798 (2000).” (Internal quotation marks omitted.) In re Cheyenne A., supra, 59 Conn. App. 160 n.5; see also Johnson v. Commissioner of Correction, 288 Conn. 53, 60, 951 A.2d 520 (2008) (“party is obligated . . . affirmatively to request review under [Golding]” [internal quotation marks omitted]); State v. McKenzie-Adams, 281 Conn. 486, 533 n.23, 915 A.2d 822 (party may seek to prevail on unpreserved claims under Golding “if the party affirmatively requests and adequately briefs his entitlement to such review”), cert. denied, 552 U.S. 888, 128 S. Ct. 248, 169 L. Ed. 2d 148 (2007). Indeed, a comparison of the respondent’s posttriai brief in the trial court and his brief in this court makes clear that, by quoting the language from Dacey v. Connecticut Bar Assn., supra, 170 Conn. 537, that we have quoted previously, the respondent specifically relied in the trial court on the formulation for the clear and convincing evidence standard that he claims in this court is constitutionally deficient. An appellant may not seek to prevail under Golding on a claim of trial court error that he specifically asked the trial court to adopt. See, e.g., State v. Coward, 292 Conn. 296, 305-306, 972 A.2d 691 (2009); State v. Brunetti, 279 Conn. 39, 59 n.32, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S. Ct. 1328, 167 L. Ed. 2d 85 (2007); State v. Cruz, 269 Conn. 97, 106, 848 A.2d 445 (2004). We therefore decline to address the respondent’s claim.

The judgments are affirmed.

       The mother also appealed from the judgments terminating her rights with respect to these three children. See In re Giovanni C., 120 Conn. App. 274, 991 A.2d 642 (2010).

       In Cruzan v. Director, Missouri Dept. of Health, supra, 497 U.S. 285 n. 11, the court referred to clear and convincing evidence as “evidence which produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable [the fact finder] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.” (Internal quotation marks omitted.)


author: ROBINSON, J.

text:
    ANNA KASTANCUK, COADMINISTRATOR (ESTATE OF SHERRIE KASTANCUK) v. TOWN OF EAST HAVEN ET AL.
    (AC 30041)
    Bishop, Robinson and Alvord, Js.
    Argued December 8, 2009
    officially released April 6, 2010

      David T. Grudberg, for the appellant (plaintiff).

      Nicole Foumier-Gelston, with whom, on the brief, was Hugh F. Keefe, for the appellees (defendants).
   Opinion

ROBINSON, J.

The plaintiff, Anna Kastancuk, co-administrator of the estate of Sherrie Kastancuk, appeals from the judgment of the trial court rendered in favor of the defendants, the town of East Haven and several members of its police department, granting their motion to strike the plaintiffs amended complaint. Specifically, the plaintiff claims that the court improperly found that the defendants were entitled to governmental immunity as to her claim of negligence because the duties she alleged were discretionary. We disagree and affirm the judgment of the trial court.

Because the issues raised in the plaintiffs appeal concern the granting of a motion to strike, we are limited to, and must accept as true, the following facts as alleged in the plaintiffs complaint. See Waters v. Autuori, 236 Conn. 820, 822, 676 A.2d 357 (1996). “On February 2,2002, at approximately 1:11 p.m., [the] plaintiffs decedent, Sherrie [Kastancuk, was] arrested on a shoplifting charge, and taken into custody by officers of the New Haven [p]olice [department.” The decedent was then transported to the East Haven police department, where she arrived at approximately 1:30 p.m. Upon arrival, the decedent was placed in a locked holding cell, “the lockup,” where she was under the care of the defendants. The police department lockup area was equipped with video cameras, as well as audio monitors, which enabled officers at the main desk and dispatch area to monitor individuals being held in the lockup cells. The decedent remained in custody at the police department through the afternoon of February 2, 2002, because she was unable to post the bond that had been set for her. At approximately 3:30 p.m., Lisa Scaramella went to the lockup area to check on the decedent after noticing her standing with her back to the camera and her arms crossed. Between 3:30 p.m. and 5:56 p.m., none of the defendants, nor any other police officer, checked on the decedent or took any other steps to ensure her safety and well-being. At some point during this time, the decedent committed suicide by hanging herself in her holding cell at the police department.

On March 5, 2004, the plaintiff filed a complaint against the defendants. On January 14,2005, the plaintiff filed a revised amended complaint alleging that (1) the defendant members of the police department, in their individual capacities, violated 42 U.S.C. § 1983, (2) the defendant town violated 42 U.S.C. § 1983 and (3) all of the defendants were hable for common-law negligence. In count three of the complaint, the plaintiff alleged that the defendants were negligent for breaching their duty (1) to monitor adequately and to care for the well-being of the decedent after she was arrested and taken into custody, (2) to provide adequate facilities by which appropriate monitoring of the decedent could be performed while she was in the custody of the police department, (3) to make reasonable inspections of the decedent while she was incarcerated and to monitor her activities to ensure that she did not take her own life or engage in self-destructive conduct, (4) to install or to maintain adequate lighting in the area in which holding cells were located within the police department so that existing monitoring equipment could properly and adequately allow monitoring of prisoners, (5) to remove potentially harmful clothing from the decedent prior to her being placed in a holding cell, (6) to implement or to maintain adequate policies, protocols or standards of care for individuals in the custody of the police department or the agents thereof and (7) to train adequately or to supervise adequately the officers of the police department who were responsible for the care, custody and control of the decedent.

On March 1, 2005, the defendants filed a motion to strike the plaintiffs revised amended complaint. On February 1, 2008, the court granted the defendants’ motion to strike as to all three counts of the complaint and filed an accompanying memorandum of decision. The defendants filed a motion for judgment, which was granted on May 27, 2008. This appeal followed.

The plaintiff claims that the court improperly granted the defendants’ motion to strike her negligence claim because the defendants were not entitled to governmental immunity. Specifically, the plaintiff argues that the court improperly found that the defendants’ acts were discretionary, which allowed for a finding of governmental immunity, based only on the allegations in her complaint. We disagree.

We begin our analysis by setting forth the applicable standard of review. “The standard of review in an appeal challenging a trial court’s granting of a motion to strike is well established. 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 court’s ruling is plenary. . . . We take the facts to be those alleged in the [pleading] that has been stricken and we construe the [pleading] in the manner most favorable to sustaining its legal sufficiency.” (Internal quotation marks omitted.) Ameriquest Mortgage Co. v. Lax, 113 Conn. App. 646, 649, 969 A.2d 177, cert. denied, 292 Conn. 907, 973 A.2d 103 (2009).

“The general rule is that governments and their agents are immune from liability for acts conducted in performance of their official duties. The common-law doctrine of governmental immunity has been statutorily enacted and is now largely codified in General Statutes § 52-557n.” (Internal quotation marks omitted.) Martin v. Westport, 108 Conn. App. 710, 729, 950 A.2d 19 (2008). Section 52-557n (a) (1) sets forth the circumstances when a political subdivision will be held liable for damages to a person. This statute provides in relevant part: “Except as otherwise provided by law, apolitical subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties . . . .” General Statutes § 52-557n (a) (1) (A). The statute also fists two exceptions to the statutory abrogation of governmental immunity. The exception relevant to this appeal provides: “Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by . . . (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law. ” General Statutes § 52-557n (a) (2).

The plaintiff included both the defendant town and its employees in their individual capacities in the claim of negligence. “Generally, the common law states that a municipal employee is liable for the misperformance of a ministerial act, but has a qualified immunity in the performance of a discretionary act. . . . This employee immunity for discretionary acts is identical to the municipality’s immunity for its employees’ discretionary acts under § 52-557n.” (Citation omitted.) Myers v. Hartford, 84 Conn. App. 395, 401, 853 A.2d 621, cert. denied, 271 Conn. 927, 859 A.2d 582 (2004).

“The hallmark of a discretionary act is that it requires the exercise of judgment. . . . In contrast, [ministerial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion. . . . Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder . . . there are cases where it is apparent from the complaint.” (Citations omitted; internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 48-49, 881 A.2d 194 (2005).

The plaintiffs complaint alleged that the defendants failed to perform duties, all of which inherently require discretion, i.e., the removal of potentially harmful clothing, the reasonable inspection of the decedent and the maintaining of adequate lighting. Furthermore, the plaintiff offered no evidence demonstrating that a policy or procedure existed that required the defendants to complete these duties in a prescribed manner. See id., 50.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants include the town of East Haven, Lisa Scaramella, John Cascio, Edward Peterson, Gary DePalma and Leonard Gallo. At all relevant times, these individuals were employed by the East Haven police department.

       The plaintiff does not appeal from the judgment rendered on the stricken counts of her complaint alleging violations of 42 U.S.C. § 1983.

       The town of East Haven is considered a political subdivision of the state under § 52-557n (a) (1). See Swanson v. Groton, 116 Conn. App. 849, 854-55, 977 A.2d 738 (2009).

       The plaintiff also argues that, when making its decision on the motion to strike, the court improperly assumed that her negligence claim was based on the exception to governmental immunity that “when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable [or foreseeable] person to imminent harm, the public officer is not entitled to qualified immunity.” (Internal quotation marks omitted.) Fleming v. Bridgeport, 284 Conn. 502, 532, 935 A.2d 126 (2007). Our review of the court’s granting of the motion to strike is plenary, however, so irrespective of the court’s reasoning, we conclude that based on the facts alleged in the pleadings, the court’s decision was correct as a matter of law.


author: ALVORD, J.

text:
    STATE OF CONNECTICUT v. BRUSHAUN L. THOMPSON
    (AC 29654)
    Lavine, Beach and Alvord, Js.
    Argued January 6
    officially released April 6, 2010

      Jodi Zils Gagne, special public defender, for the appellant (defendant).

      Melissa Patterson, deputy assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Michael A. DeJoseph, assistant state’s attorney, for the appellee (state).
   Opinion

ALVORD, J.

The defendant, Brushaun L. Thompson, appeals from the judgments of the trial court denying his motion to terminate probation. On appeal, the defendant claims that the court abused its discretion when it denied his motion because the state’s delay in charging him with a probation violation constituted a violation of his due process rights. We affirm the judgments of the trial court.

Following convictions for larceny in the third degree, the court sentenced the defendant to a total effective term of six years incarceration, execution suspended after two and one-half years, and three years of probation. The defendant was released from incarceration and began probation on January 28, 2005. A condition of the defendant’s probation was that he “not violate any criminal law of the United States, this state or any other state or territory.” In September, 2005, the defendant was arrested and charged with two counts of larceny in the first degree, eleven counts of identity theft and failure to appear. During his trial, the defendant was involved in an altercation with a judicial marshal at the Norwalk courthouse, and, as a result, he was arrested in July, 2007, and charged with assault of public safety personnel. An arrest warrant for probation violations issued in August, 2007.

On January 2, 2008, the defendant filed an amended motion to terminate probation pursuant to General Statutes § 53a-33. On January 14, 2008, following a hearing, the court denied the defendant’s motion and found him in violation of probation. On appeal, the defendant does not challenge the court’s determination that a probation violation occurred. Instead, he claims that the court abused its discretion when it denied his motion to terminate because the state’s delay in pursuing the probation violation constituted a violation of his due process rights.

Although both parties agree that the court’s denial of the defendant’s motion should be reviewed for abuse of discretion, the defendant has not provided us with an adequate record to review his claim. “The duty to provide this court with a record adequate for review rests with the appellant. ... It is incumbent upon the appellant to take the necessary steps to sustain its burden of providing an adequate record for appellate review. . . . Without the necessary factual and legal conclusions furnished by the trial court, any decision made by us respecting the defendant’s claims would be entirely speculative.” (Citations omitted; internal quotation marks omitted.) State v. Cotto, 111 Conn. App. 818, 821, 960 A.2d 1113 (2008). In this case, the court did not articulate the basis for its decision, and the defendant did not file a motion for articulation. As a result, the record before us is inadequate, and we decline to review the defendant’s claim.

The judgments are affirmed.

In this opinion the other judges concurred.

       Following a jury trial, the defendant was convicted of two counts of larceny in the first degree in violation of General Statutes § 53a-122 (a) (2) and one count of failure to appear in the first degree in violation of General Statutes § 53a-172 (a) (1). See State v. Thompson, Superior Court, judicial district of Stamford-Norwalk, Docket No. CR-05-0110055-S (July 13, 2007).

       General Statutes § 53a-33 provides in relevant part: “The court or sentencing judge may at any time during the period of probation or conditional discharge, after hearing and for good cause shown, terminate a sentence of probation or conditional discharge before the completion thereof . . . .”

       The defendant argues that he should have been charged with a probation violation when he was arrested in September, 2005.


author: PETERS, J.

text:
    SUZANNE M. KAIRON v. BRUCE E. BURNHAM ET AL.
    (AC 30583)
    DiPentima, Robinson and Peters, Js.
    Argued February 5
    officially released April 6, 2010

      Ronald W. Kutz, with whom, on the brief, was Joseph E. Prokop, for the appellant (plaintiff).

      Michael D. Neubert, with whom was Gretchen G. Randall, for the appellees (defendants).
   Opinion

PETERS, J.

Because the requirements for proper medical diagnosis and treatment ordinarily are not within the common knowledge of laypersons, a former patient who wishes to pursue a medical malpractice action generally must present expert testimony to the trier of fact. Dimmock v. Lawrence & Memorial Hospital, Inc., 286 Conn. 789, 813, 945 A.2d 955 (2008). To be admissible, such testimony must comply with the requirements for reliability and relevance established in State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) (en banc), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998). In the present case, the trial court, after finding that the testimony proffered by the former patient’s expert witness was neither reliable nor relevant, granted the physician’s motion to preclude the testimony from the trial and consequently granted the physician’s motion for summary judgment. The former patient has appealed. We affirm the judgment of the court.

On January 28, 2005, the plaintiff, Suzanne M. Kairon, filed a multicount complaint charging the defendant Bruce E. Burnham, a plastic surgeon, with negligence, breach of contract, breach of express warranty, negligent infliction of emotional distress, breach of implied warranty and violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. After an evidentiary hearing, the trial court, Domnarski, J., granted the defendant’s motion in limine to preclude the testimony of the plaintiffs expert witness, Carlos Benavides, a board certified otolaryngologist. Although the court rejected the defendant’s claim that Benavides was unqualified to testify because he was not a “similar health care provider” as required by General Statutes § 52-184c, the court held that his testimony did not satisfy Porter standards for scientific reliability. The court then granted the defendant’s motion for summary judgment. The plaintiff has appealed from this judgment.

The plaintiffs appeal raises two issues. She argues that the court (1) misapplied the standard established by State v. Porter, supra, 241 Conn. 57, and (2) improperly held the Porter hearing on the eve of trial. We disagree with both claims.

I

THE MERITS OF THE PORTER RULING

Our review of the merits of the court’s evidentiary ruling excluding the testimony of her expert witness is governed by well established principles. “Unless an evidentiary ruling involves a clear misconception of the law, the [t]riai court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling . . . .” (Internal quotation marks omitted.) State v. St. John, 282 Conn. 260, 270, 919 A.2d 452 (2007). We can find no abuse of discretion in this case.

Many of the facts underlying the plaintiffs malpractice claim are undisputed. On January 30, 2003, the defendant performed a mini face-lift on the plaintiff. From April, 2004, through January, 2006, the plaintiff consulted Benavides for treatment of facial lesions and swelling that she and Benavides attributed to the surgery performed by the defendant.

At the hearing on the defendant’s motion to preclude Benavides’ testimony, Benavides testified that, although the operative note describing the surgical procedure used by the defendant for the plaintiffs face-lift indicated the use of appropriate PDS sutures, he believed that a nonapproved type of suture had in fact been used, had become embedded in the plaintiffs face and had caused her to suffer continued facial problems. He based his opinion on the severity and the location of the plaintiffs facial problems, which manifested a “linear reaction” to her surgery. In his view, such a reaction would be highly unusual if the defendant had used the sutures described in the operative note. He did not, however, dispute the report of another plastic surgeon, Laurence Kirwan, that even appropriate PDS sutures occasionally may cause a patient to suffer adverse reactions. He also acknowledged that a pathology study that he had ordered for the plaintiffs face found only normal skin and no foreign body.

At the conclusion of the hearing, the court held that “Benavides’ opinion that [the defendant had] used unacceptable suture material is not reliable or relevant and does not meet the gatekeeping requirements of . . . PorterWith respect to reliability, the court found “a lack of reasoning or methodology which supports Dr. Benavides’ conclusion that only the use of unacceptable sutures could cause the plaintiffs condition.” In addition, the court noted that use of PDS sutures was not a substantial part of Benavides’ practice and held that this fact “affects the reliability of his opinions regarding whether PDS sutures allegedly used could have caused the plaintiffs condition.” Finally, on the issue of relevance, the court noted that, at his pretrial deposition, Benavides had testified that his opinion, “while not pure speculation, was speculation.”

The plaintiff argues that the court’s ruling was an abuse of its discretion because, in her view, Benavides’ testimony satisfied the requirements of State v. Porter, supra, 241 Conn. 57, as codified in § 7-2 of the Connecticut Code of Evidence. She maintains that his testimony scientifically established that she had suffered an adverse reaction to the inappropriate sutures that the defendant had used in performing her face-lift. This argument assumes that it is irrelevant whether, in fact, the defendant had used sutures that were surgically inappropriate. Benavides admittedly could offer no independent evidence on this crucial issue. Furthermore, it fails to take into account Benavides’ failure to dispute Kirwan’s opinion that even appropriate suture materials occasionally caused patients to suffer adverse reactions.

Viewing the record as a whole, we are not persuaded that the court abused its discretion in finding that Benavides had no reasonable scientific basis for opining that the defendant negligently had performed facial surgery on the plaintiff. The fact that Benavides was the plaintiffs treating physician gave him expertise to describe the plaintiffs state of health, but it did not relieve him of the burden of articulating a persuasive theory scientifically linking her medical problems to professional malpractice on the part of the defendant. Our Supreme Court, in State v. Porter, supra, 241 Conn. 84, stated that “[t]he factors atrial court will find helpful in determining whether the underlying theories and techniques of the proffered evidence are scientifically reliable will differ with each particular case.” (Internal quotation marks omitted.) The case on which the trial court relied, however, E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995), pointedly held it was improper for a trial court to assume that one of several possible causes could have produced injury. Id., 558-60. That precedent is persuasive here.

II

THE TIMING OF THE PORTER HEARING

The plaintiff also argues that it was improper for the court to delay conducting a Porter hearing until the eve of trial, at a time when the jury had been picked and it was too late for the plaintiff to find an alternate expert witness. The plaintiff acknowledges that, to prevail, she again must establish that the court’s action was an abuse of its discretion.

The plaintiffs argument on this issue is confined to the recital of the undisputed histoiy of the present litigation. After a timely disclosure, Benavides was deposed on January 10, 2007, a motion to preclude his testimony was filed on November 4, 2008, and a hearing on that motion was held on November 19, 2008.

A review of the January, 2007 deposition demonstrates that the defendant’s questioning of Benavides gave the plaintiff fair warning then that, at or before trial, he would challenge Benavides’ ability to present the expert testimony that the plaintiff would need to prevail. Indeed, the plaintiff does not argue to the contrary. It follows that she has failed to establish how she was prejudiced by the timing of the motion to preclude. Moreover, there is neither a claim nor evidence, anywhere in the record, that the timing of the hearing on the motion violated established case management procedures in the Superior Court.

In sum, we disagree with the plaintiffs claims, one substantive and one procedural, that the court abused its discretion in granting the defendant’s motion to preclude the testimony of her sole proffered expert witness. It follows that the court properly granted the defendant’s motion for summary judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       Because the codefendant, Plastic Surgery Center, Inc., appears to have no independent role in this litigation, we refer to Burnham as the sole defendant.

       The count charging a violation of the Connecticut Unfair Trade Practices Act was stricken by the court, Stengel, J., on September 25, 2005.

       General Statutes § 52-184c provides in relevant part: “(a) In any civil action to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, in which it is alleged that such injury or death resulted from the negligence of a health care provider, as defined in section 52-184b, the claimant shall have the burden of proving by the preponderance of the evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers. . . .
      “(c) If the defendant health care provider is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist, a ‘similar health care provider’ is one who: (1) Is trained and experienced in the same specialty; and (2) is certified by the appropriate American board in the same specialty; provided if the defendant health care provider is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a ‘similar health care provider’.
      “(d) Any health care provider may testify as an expert in any action if he: (1) Is a ‘similar health care provider’ pursuant to subsection (b) or (c) of this section; or (2) is not a similar health care provider pursuant to subsection (b) or (c) of this section but, to the satisfaction of the court, possesses sufficient training, experience and knowledge as a result of practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine. Such training, experience or knowledge shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim.”

       In State v. Porter, supra, 241 Conn. 57, our Supreme Court directed trial judges, in admitting scientific evidence, to serve a gatekeeper function in determining whether such evidence will assist the trier of fact. Id., 73. The rule of Porter has been codified in § 7-2 of the Connecticut Code of Evidence, which provides that “[a] witness qualified as an expert by knowledge, skill, experience, training, education or otherwise may testify in the form of an opinion or otherwise concerning scientific, technical or other specialized knowledge, if the testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue.”

       The defendant’s motion for summary judgment alleged that the remaining counts of the plaintiffs complaint, once the malpractice count could no longer be pursued, were based on breach of contract. The defendant noted the absence of any allegations that he had assured or warranted any specific result in the parties’ agreement for the face-lift that he performed for the plaintiff.
      Although the motion for summary judgment did not refer to the stricken count nine, that count was not repleaded. The plaintiff, therefore, has appealed from a final judgment. See Anderson v. Gordon, Muir & Foley, LLP, 108 Conn. App. 410, 414 n.6, 949 A.2d 488, cert. denied, 289 Conn. 927, 958 A.2d 156 (2008).

       We reject the defendant’s contention that the plaintiff has not provided an adequate record for the presentation of her claims on appeal. See Practice Book §§ 60-5 and 64-1. We note that the court record contains a signed transcript of the November 20, 2008 hearing at which the court granted the defendant’s motion to preclude. The appendix to the plaintiffs brief contains an unsigned transcript of the November 21, 2008 proceeding at which the court stated, for the record, that it had denied the plaintiffs motion for reargument, and that it was denying the plaintiffs motion for a continuance, granting the defendant permission to file a motion for summary judgment and granting the defendant’s motion for summary judgment. In the absence of a claim of inaccuracy in any of this documentation, we have the authority to consider the merits of the plaintiffs claims on appeal. Robinson v. Robinson, 103 Conn. App. 69, 74 n.3, 927 A.2d 364 (2007).


author: SCHALLER, J.

text:
    PINA FIORELLI ET AL. v. ARNOLD H. GORSKY, TRUSTEE, ET AL.
    (AC 30596)
    Bishop, DiPentima and Schaller, Js.

      Argued January 6
    officially released April 6, 2010

      Enrico Vaccaro, for the appellants (plaintiffs).

      Brendan T. Cahill, for the appellees (defendant Paul S. Gorsky et al.).
   Opinion

SCHALLER, J.

This appeal arises out of an action brought by the plaintiffs, Pina Fiorelli and her husband, Rocco Fiorelli, to recover damages for injuries sustained by Pina Fiorelli as a result of an automobile accident that occurred on premises owned by the defendants, Arnold H. Gorsky, Paul S. Gorsky and Eastland Derby Realty Trust, and leased to Webster Bank, which was a defendant when the action was initiated. The plaintiffs appeal from the trial court’s granting of the defendants’ motion for summary judgment. On appeal, the plaintiffs claim that the court (1) committed plain error in granting the defendants’ motion because there was no evidence that established that the premises on which the accident occurred were subject to the ground lease between the defendants and Derby Savings Bank, and (2) improperly granted the defendants’ motion because there were genuine issues of material fact as to (a) whether the defendants retained possession and control of the premises, and (b) whether the defendants were hable for injuries that occurred on the premises. We affirm the judgment of the trial court.

The record reveals the following undisputed facts and procedural history. The plaintiffs filed a six count complaint returnable on November 1, 2005. The complaint arose from a car accident that occurred in the Orange-Derby Shopping Center in Derby, in which a vehicle driven by Megan Kisyk struck Pina Fiorelli’s vehicle as the Fiorelli vehicle was attempting to exit the parking area of the Webster Bank branch office. As a result of the accident, Pina Fiorelli suffered injuries, including injuries to her cervical and lumbar spine.

On June 30, 2008, the defendants filed a motion for summary judgment. The defendants argued that they owed no legal duty to the plaintiffs because they had executed a ground lease of the premises on which the accident occurred with Derby Savings Bank, whose rights later were transferred to Webster Bank through both assignment and merger. At the time of the accident, the defendants claim, Webster Bank was in full possession and control of the leased premises.

The plaintiffs filed an objection to the defendants’ motion for summary judgment, contending that the issue of possession and control is an issue of fact for the jury. The plaintiffs argued that several sections of the ground lease support a finding that the defendants remained in control of the leased premises. Additionally, the plaintiffs claimed that under Webel v. Yale University, 125 Conn. 515, 7 A.2d 215 (1939), even if the defendants were not in possession or control of the leased premises, it did not foreclose their potential liability. Following oral argument on the motion on November 17, 2008, the court rendered summary judgment in favor of the defendants. This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiffs claim that the trial court committed plain error in granting the defendants’ motion for summary judgment because there was no evidence that established that the premises on which the accident occurred were subject to the ground lease. We disagree.

The following additional facts are necessary for the resolution of the plaintiffs’ claim. The plaintiffs’ complaint alleged that “[a]t all times material hereto, the defendants . . . [were] the owners of . . . the Orange-Derby Shopping Center .... Said shopping center contained ... a branch office of . . . Webster Bank. Said Webster Bank branch office located in said shopping center, while part of said shopping center, had a designated parking area for said branch office separate from the other parking areas in said shopping center and its own designated ingress and egress area into said designated parking area. . . .

“On or about September 9, 2003 at approximately 8:11 a.m., the plaintiff, Pina Fiorelli, was a customer and business invitee of the defendants . . . [and was] lawfully on the premises of the Orange-Derby Shopping Center at 500 New Haven Avenue, Derby, Connecticut. [Pina Fiorelli] was on said premises to transact banking business at the branch office of . . . Webster Bank on said premises. At said time and place as the plaintiff, Pina Fiorelli, was operating her motor vehicle in the designated egress area leading from the branch office of . . . Webster Bank ... on said premises and attempting to exit from said branch office area through said designated egress area on said premises, the vehicle driven by the plaintiff, Pina Fiorelli, was struck by a vehicle driven by . . . Kisyk .... Kisyk, while attempting to enter into the ingress area to gain access to said branch office of . . . Webster Bank . . . crossed into the egress area leading from said branch office of . . . Webster Bank ... on said premises and the designated parking area appurtenant thereto and struck and collided with the motor vehicle driven by the plaintiff, Pina Fiorelli, which was in said egress area attempting to exit from said branch office . . . .”

The defendants’ answer did not deny these allegations but, rather, stated that the defendants were without sufficient knowledge to form a belief and left the plaintiffs to prove their allegations. The memorandum of law in support of the defendants’ motion for summary judgment also did not dispute the plaintiffs’ allegations, but rather asserted that, accepting as true the factual allegations relating to the underlying motor vehicle accident, the defendants did not owe the plaintiffs a legal duty that would subj ect them to liability for their alleged negligence. The lease between the defendants and Derby Savings Bank, which was attached as an exhibit to the memorandum of law, references a survey of the premises, which was referred to as exhibit A to the lease. No such survey was attached to the lease.

At oral argument on the defendants’ motion for summary judgment, the plaintiffs alerted the court to this omission. The court, however, did not address the plaintiffs’ concern and rendered summary judgment in favor of the defendants. The plaintiffs now claim that the court committed plain error in granting the defendants’ motion for summary judgment in the absence of evidence that established that the accident occurred on the leased premises.

“[T]he plain error doctrine, which is now codified at Practice Book § 60-5 ... is not ... a rule of review-ability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy. ... In addition, the plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Plain error is a doctrine that should be invoked sparingly. ... A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice. . . . Implicit in this very demanding standard is the notion, explained previously, that invocation of the plain error doctrine is reserved for occasions requiring the reversal of the judgment under review. . . . [Thus, a] defendant cannot prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.” (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 521-22, 923 A.2d 638 (2007).

The claimed plain error in this case occurred in the context of a motion for summary judgment. “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 787, 967 A.2d 1 (2009). Here, the nonmoving party, the plaintiffs, alleged that the accident occurred in the “egress area” of Webster Bank’s premises, the premises originally leased by the defendants to Derby Savings Bank. The defendants did not dispute the plaintiffs’ factual allegations but, instead, argued that they had no legal duty toward the plaintiffs if the accident occurred as alleged. Neither the defendants nor the plaintiffs presented any evidence regarding the precise location of the accident and whether it occurred on the leased premises. Had the plaintiffs presented evidence supporting their argument that the accident did not occur on the leased premises, it would have necessarily been inconsistent with their complaint, which pleaded that the accident occurred in the egress area of the premises leased by Webster Bank. The court, in granting the motion for summary judgment, implicitly determined that, even if the accident occurred on the premises leased by Webster Bank, as alleged by the plaintiffs, there was no question of material fact regarding the defendants’ possession and control of the leased premises. We cannot say that the court committed an error affecting the “fairness and integrity of and public confidence in the judicial proceedings”; (internal quotation marks omitted) Cogswell v. American Transit Ins. Co., supra, 282 Conn. 522; when it accepted the plaintiffs’ allegations as true in the absence of any evidence to the contrary.

II

The plaintiffs next claim that the court improperly granted the defendants’ motion for summary judgment because there were genuine issues of material fact. Specifically, the plaintiffs contend that genuine issues of material fact existed as to whether the defendants (1) retained possession and control of the premises and (2) were liable for injuries occurring on the premises under Webel v. Yale University, supra, 125 Conn. 515. We are not persuaded.

“The standard of review of a trial court’s decision granting summary judgment is well established. Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Baldwin v. Curtis, 105 Conn. App. 844, 848, 939 A.2d 1249 (2008). “A material fact is a fact that will make a difference in the result of the case. . . . Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... it [is nevertheless] incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists. . . . [T]he existence of [a] genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence. ... If the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met [its] burden of proof. . . . Our review of the trial court’s decision to grant [a] defendant’s motion for summary judgment is plenary.” (Citations omitted; internal quotation marks omitted.) Farrell v. Twenty-First Century Ins. Co., 118 Conn. App. 757, 759-60, 985 A.2d 1076, cert. granted on other grounds, 295 Conn. 904, 988 A.2d 878 (2010).

A

The plaintiffs claim that a genuine issue of material fact existed as to whether the defendants retained possession and control of the premises on which the accident occurred. Specifically, they contend that certain provisions of the lease between the defendants and Derby Savings Bank evidence the defendants’ retention of control over the leased premises. We understand the lease, when read as a whole, to give the lessor of the leased premises complete control and possession, and therefore disagree.

The following facts are relevant to the resolution of the plaintiffs’ claim. In support of their contention that they did not retain possession or control of the leased premises, the defendants attached to the motion for summary judgment a copy of the 1984 ground lease between them and Derby Savings Bank, a 1996 letter from Derby Savings Bank regarding the assignment of its rights to Webster Bank and an affidavit from Paul Gorsky. The affidavit states that at the time of the lease, the bank branch did not exist on the premises. Paul Gorsky further represented that the defendants did not design the bank building or the adjacent parking areas, and the lease specifies that Derby Savings Bank and its successors and assigns owned all the improvements on the premises and were responsible for the maintenance and repair of the building and parking areas.

The plaintiffs argue that certain provisions in the lease indicate that the defendants retained control over the leased premises. The plaintiffs refer specifically to paragraphs 5 (B), 11, 23 and 42. Paragraph 5 is entitled “Use and Occupancy,” and subsection (B) provides in relevant part: “Tenant shall observe all reasonable rules and regulations established from time to time by Landlord for the Demised Premises and the Shopping Center of which the Demised Premises is a part.” Paragraph 11 provides: “Throughout the term of this Lease, Tenant shall not demolish, change, improve, alter or add to the improvements on the Demised Premises, or erect new buildings or other improvements thereon . . . except pursuant to plans and specifications first approved in writing by Landlord, such approval not to be unreasonably withheld, and otherwise in compliance with this Paragraph 11 and the other terms and conditions of this Lease.” Paragraph 23 provides in relevant part: “Tenant shall not, without first obtaining the written consent of Landlord, place or permit to be placed signs and advertising matter in, on or about the Demised Premises . . . .” Paragraph 42 states: “Provided that Tenant is not in default under this Lease, Landlord agrees to maintain in a first class manner the parking areas adjacent to the Demised Premises, lying within the Shopping Center, including but not limited to the paving, lighting and drainage thereof.” The only evidence offered by the plaintiffs was the affidavit of a traffic engineer, which did not relate to the defendants’ possession or control of the premises.

“In a negligence action, the plaintiff must meet all of the essential elements of the tort in order to prevail. These elements are: duty; breach of that duty; causation; and actual injury. . . . The general rule regarding premises liability in the landlord-tenant context is that landlords owe a duty of reasonable care as to those parts of the property over which they have retained control .... [L]andlords [however] generally [do] not have a duty to keep in repair any portion of the premises leased to and in the exclusive possession and control of the tenant.” (Citation omitted; internal quotation marks omitted.) Baldwin v. Curtis, supra, 105 Conn. App. 848-49; see also 2 Restatement (Second), Torts § 421 (1965) (nondelegable duty arises when possessor of land, having leased part of land, still owes duty to maintain in reasonably safe condition that part of land retained by him).

“Retention of control is essentially a matter of intention to be determined in the light of all the significant circumstances. . . . The word control has no legal or technical meaning distinct from that given in its popular acceptation . . . and refers to the power or authority to manage, superintend, direct or oversee. . . . Unless it is definitely expressed in the lease, the circumstances of the particular case determine whether the lessor has reserved control of the premises or whether they were under the exclusive dominion of the tenant, and it becomes a question of fact and is a matter of intention in the light of all the significant and attendant facts which bear on the issue.” (Emphasis added; internal quotation marks omitted.) Stokes v. Lyddy, 75 Conn. App. 252, 261, 815 A.2d 263 (2003).

Although questions of fact ordinarily are not decided on summary judgment, if the issue of control is expressed definitively in the lease, it becomes, in effect, a question of law. Paragraph 22 (D) of the lease provides in relevant part: “Tenant hereby assumes the full and sole responsibility for the condition, operation, repair, replacement, maintenance and management of the Demised Premises.” Furthermore, Paul Gorsky’s affidavit states that under the terms of the lease, “Derby Savings Bank agreed to construct a bank branch with adjacent parking and all landscaping, and Derby Savings Bank assumed possession and control of the leased property . . . .” The lease specifies that Derby Savings Bank and its successors and assigns owned all of the improvements constructed on the premises, and were responsible for the maintenance and repair to the bank building and adjacent parking areas.

The plaintiffs presented no evidence contrary to Paul Gorsky’s affidavit or the lease terms. They merely referred to sections of the contract under which the lessor needed the defendants’ approval prior to taking some action. “In construing a written lease, which constitutes a written contract, three elementary principles must be kept constantly in mind: (1) The intention of the parties is controlling and must be gathered from the language of the lease in the light of the circumstances surrounding the parties at the execution of the instrument; (2) the language must be given its ordinary meaning unless a technical or special meaning is clearly intended; [and] (3) the lease must be construed as a whole and in such a manner as to give effect to every provision, if reasonably possible.” (Internal quotation marks omitted.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 275, 709 A.2d 558 (1998). When read as a whole, the terms of the lease allowed the defendants to approve the plans for the bank branch prior to its construction, at which time the lessor would take control and possession of the premises. The court correctly determined that the defendants did not retain possession and control of the premises, and therefore did not owe the plaintiffs a duty of care.

B

The plaintiffs’ final claim is that a genuine issue of material fact exists as to whether the defendants, even if they did not retain possession and control, were hable for injuries occurring on the premises pursuant to Webel v. Yale University, supra, 125 Conn. 515. Specifically, the plaintiffs argue that this case satisfies the test set forth in Webel, which held that “a visitor to business premises which have been leased by the owner may recover against him upon proof (1) that there existed at the time of the leasing conditions on the leased premises likely to cause injury to persons entering the premises; (2) that the landlord had knowledge, actual or imputable, of the existence of these conditions; (3) that the landlord had knowledge, actual or imputable, that persons were likely to be invited upon the premises as customers of the tenant; (4) that the landlord had reason to expect that the tenant would not take steps to remedy or guard against iryury from the conditions.” Brenner v. Central Realty Co., 130 Conn. 666, 667, 37 A.2d 230 (1944). We conclude that Webel does not apply in this situation.

In Webel v. Yale University, supra, 125 Conn. 517, the plaintiff fell on premises leased by Yale University for a beauty shop. The floor of a room from which the plaintiff was leaving was seven inches higher than that of the room she was entering. Id. Our Supreme Court adopted and applied a doctrine relating to the situation in which a landowner leases premises for a purpose that will result in people entering them as invitees of the tenant. Id., 523. The court determined that if there are conditions on the premises that are likely to cause injury to such persons and the landowner knows or should know that the tenant cannot reasonably be expected to remedy these conditions or guard against danger from them, the landlord may be liable for injuries suffered by reason of those conditions. Id.

The facts of Webel are not the facts of this case. The premises leased by the defendants to Derby Savings Bank had no conditions likely to cause injury to business invitees. In fact, at the time of the lease, there were no improvements on the land at all. It was not until after the parties signed the lease that Derby Savings Bank erected the building, designed the adjacent parking areas and landscaped the premises. The plaintiffs’ contention that there existed at the time of the lease conditions on the premises likely to cause injury to persons entering the premises is not supported by the record. The court, therefore, did not improperly grant the defendants’ motion for summary judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       Arnold Gorsky and Paul Gorsky were sued in their capacities as trustees of Eastland Derby Realty Trust. Following the initiation of the action, the defendants’ counsel filed a suggestion of death notice on behalf of Arnold Gorsky, who died prior to the accident underlying the plaintiffs’ complaint. The plaintiffs have not substituted his estate as a party to this action. The defendants argued that the case against Arnold Gorsky was a nullity. The trial court rendered summary judgment as to Arnold Gorsky on those grounds, and the plaintiffs have not appealed from that judgment. Webster Bank is not a party to this appeal. Therefore, the term defendants refers only to Paul Gorsky, in his capacity as trustee, and Eastland Derby Realty Trust.

       In support of their motion, the defendants submitted the ground lease, a letter from Derby Savings Bank regarding the assignment of its rights to Webster Bank and an affidavit from Paul Gorsky.

       On appeal, the defendants urge us to consider photographs of the premises and portions of Pina Fiorelli’s deposition testimony. As this evidence was not before the trial court when it decided the motion for summary judgment, we will not consider it on appeal.


text:
    BARBARA R. BURNS v. QUINNIPIAC UNIVERSITY
    (AC 30833)
    Harper, Alvord and Mihalakos, Js.

      Argued December 2, 2009
    officially released April 6, 2010

      Barbara R. Bums, pro se, the appellant (plaintiff).

      Sean M. Nourie, with whom, on the brief, was Matthew G. Conway, for the appellee (defendant).
   Opinion

ALVORD, J.

The plaintiff, Barbara R. Bums, appeals pro se from the judgment of the trial court, rendered after a trial to the court, in favor of the defendant, Quinnipiac University (university). The plaintiff claims that the court (1) was biased and incapable of adjudicating her claims, (2) improperly applied Connecticut law rather than Minnesota law in resolving her claims, (3) improperly determined that good standing certification encompassed financial good standing in addition to academic good standing, (4) improperly determined that she was not in financial good standing and (5) rendered a judgment that violates public policy. We affirm the judgment of the trial court.

The plaintiff, who has resided in New Jersey and in Minnesota during the relevant time period, attended the university as a law student from January 4, 1999, to approximately July 1, 2000. At various times during that period, the plaintiff requested that the university issue certificates of good standing to certain designated institutions, including the University of Minnesota Law School, in order for her to enroll and to take courses as a visiting student for transfer credits and, subsequently, to submit with her applications to transfer to another law school. In the fall of 1999, the bursar’s records indicated that the plaintiff had an unpaid tuition balance. The university took the position that the plaintiff would not be entitled to good standing certification unless she had the requisite grade point average, had no disciplinary actions taken against her and was current in her financial obligations with respect to her tuition payments. The plaintiff maintained that the law school’s student handbook defined good standing only in terms of academics and that, if the university properly had applied her financial aid, she also would have been in financial good standing.

By letter dated May 12, 2000, David S. King, associate dean, advised the plaintiff that she owed the university $11,810 and that, consequently, the law school no longer would issue her transcripts or letters of good standing until the outstanding balance had been paid. Further, the plaintiff was unable to register for additional courses at the university. In a letter dated May 24, 2000, King informed Dean Thomas Sullivan of the University of Minnesota Law School that the plaintiff no longer was in good standing and that the university no longer would accept transfer credits on her behalf.

In May, 2002, the plaintiff filed a federal diversity action against King, claiming that his May 24,2000 letter contained defamatory statements. The case proceeded to trial before a jury in January, 2005. At the close of the plaintiffs case-in-chief, the defendant’s counsel moved for judgment as a matter of law. The United States District Court for the District of Connecticut granted the motion, concluding, inter alia, that (1) the plaintiff failed to present any credible evidence upon which a jury reasonably could premise a finding that King’s statement regarding her lack of good standing was false in light of the uncontroverted evidence that her university account reflected unpaid bills of more than $11,000 and (2) financial delinquency was a ground for denial of the issuance of a certificate of good standing. The United States Court of Appeals for the Second Circuit affirmed the judgment of the District Court in a summary order filed December 23, 2005.

On May 11,2006, the plaintiff filed the present action. In her operative six count complaint dated February 23,2007, the plaintiff alleged breach of contract, promissory estoppel, negligence, fraud, intentional infliction of emotional distress and defamation. During a six day trial, the self-represented plaintiff questioned witnesses, testified on her own behalf and submitted more than ninety exhibits. Her posttrial brief was sixty-four pages in length, and her reply brief was seventy pages in length.

In its memorandum of decision filed January 22,2009, the court made the following findings: (1) good standing, for certification of academic status and for transfer purposes, includes three components—academic, behavioral and financial; (2) the plaintiff was not in good financial standing at all times during this controversy; (3) there was no credible evidence that the university breached any specific promise to the plaintiff with respect to the handling of her financial aid; (4) any claims that oral promises to facilitate transfer applications were made to the plaintiff were not credible; (5) the plaintiff failed to prove that the university was negligent or that it breached any duty owed to the plaintiff; (6) the plaintiff failed to prove that representatives of the university made any false representations to her or to any third party; (7) the plaintiff failed to prove any of the factual elements that support a claim for intentional infliction of emotional distress; and (8) the plaintiffs claim of defamation was time barred and, in any event, had no merit. Accordingly, the court rendered judgment in favor of the defendant on all counts. This appeal followed.

I

The plaintiffs first claim involves an accusation that the court improperly exhibited bias against her at trial and was incapable of adjudicating her claims. Specifically, the plaintiff argues that “certain of the trial court’s rulings and dicta connote bias” and that the trial judge made a statement that indicated he was incapable of understanding the plaintiffs claims.

The plaintiff did not raise a claim of judicial bias at any time during the course of the trial. She could have requested that the judge recuse himself. “Claims alleging judicial bias should be raised at trial by a motion for disqualification or the claim will be deemed to be waived. ... A party’s failure to raise a claim of disqualification at trial has been characterized as the functional equivalent of consenting to the judge’s presence at trial.” (Citation omitted; internal quotation marks omitted.) Wendt v. Wendt, 59 Conn. App. 656, 692, 757 A.2d 1225, cert. denied, 255 Conn. 918, 763 A.2d 1044 (2000).

Instead, the plaintiff waited until after the court rendered its judgment. “Our Supreme Court has criticized the practice whereby an attorney, cognizant of circumstances giving rise to an objection before or during trial, waits until after an unfavorable judgment to raise the issue. We have made it clear that we will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial.” (Internal quotation marks omitted.) Id., 693.

Nevertheless, we will address the plaintiffs claim given the grave nature of her accusation. “Because an accusation of judicial bias or prejudice strikes at the very core of judicial integrity and tends to undermine public confidence in the established judiciary ... we . . . have reviewed unpreserved claims of judicial bias under the plain error doctrine. . . . Plain error exists only in truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Citations omitted; internal quotation marks omitted.) Doody v. Doody, 99 Conn. App. 512, 523, 914 A.2d 1058 (2007).

The plaintiff argues that the court’s bias against her was demonstrated by a number of rulings that were in favor of the university. “[A]dverse rulings do not themselves constitute evidence of bias. . . . Obviously, if a ruling against a party could be used as an indicia of bias, at least half of the time, every court would be guilty of being biased against one of two parties. Moreover, the fact that a trial court rules adversely to a litigant, even if some of these rulings were determined on appeal to have been erroneous, [still] does not demonstrate personal bias.” (Internal quotation marks omitted.) Massey v. Branford, 118 Conn. App. 491, 502, 985 A.2d 335 (2009). The fact that the plaintiff strongly disagrees with the substance of the court’s rulings does not make those rulings evidence of bias. In the present case, the plaintiffs argument of bias is completely unsubstantiated by the trial record.

The plaintiff also argues that the statement of the trial judge that he was unable to make sense of the figures contained in a proffered exhibit demonstrated that he was incapable of understanding the plaintiffs claims at trial. The statement quoted by the plaintiff was taken out of context and does not support the plaintiffs argument. Shortly after the challenged statement was made, the court addressed the plaintiff as follows: “You just left a package of about seventy exhibits untouched and unexplained. Now, with a witness sitting on the [witness] stand who isn’t being asked any questions, you keep firing documents up at me saying this means this and this means that, and you’re not under oath and you’re not subject to cross-examination.” We therefore conclude that the plaintiffs claim is a groundless assault on the integrity of the trial court.

II

The plaintiffs next claim is that the court improperly applied Connecticut law rather than Minnesota law in resolving her claims. She argues that the educational contract between the plaintiff and the university was formed in Minnesota, that the university’s alleged defamatory statements were published to third parties in Minnesota and that the plaintiffs damages occurred in Minnesota.

The court’s memorandum of decision does not address the conflict of laws issue raised by the plaintiff. Many of the plaintiffs claims summarily were rejected by the court, without citation to any statutory or case law, on the ground that she failed to present sufficient evidence to support them or on the ground that she was not credible. In discussing each cause of action alleged in the complaint, the court only occasionally cited a Connecticut case or a Connecticut statute. Even if we assume that the court applied Connecticut law to certain of her claims, the decision is nevertheless devoid of any analysis as to the reasons for applying Connecticut law rather than Minnesota law. The court’s decision does not provide the necessary factual and legal conclusions to permit a proper review of a choice of law issue.

The plaintiff failed to seek an articulation with respect to the court’s resolution of her choice of law argument. “An articulation may be necessary where the trial court fails completely to state any basis for its decision ... or where the basis, although stated, is unclear. ... It is the responsibility of the appellant to provide an adequate record for review as provided in [Practice Book §] 61-10.” (Internal quotation marks omitted.) Hannon v. Redler, 117 Conn. App. 403, 412, 979 A.2d 558 (2009). The failure to seek an articulation precludes a meaningful review of her claim.

Even if we assume that such a review is possible on the present record, the plaintiffs claim fails because she failed to indicate at trial or in her principal brief to this court how the application of Minnesota law would have resulted in a different outcome. “The threshold choice of law issue in Connecticut, as it is elsewhere, is whether there is an outcome determinative conflict between applicable laws of the states with a potential interest in the case. If not, there is no need to perform a choice of law analysis, and the law common to the jurisdiction should be applied.” (Internal quotation marks omitted.) Chien v. Skystar Bio Pharmaceutical Co., 623 F. Sup. 2d 255, 262 n.6 (D. Conn. 2009); Brown v. Strum, 350 F. Sup. 2d 346, 348 (D. Conn. 2004). The plaintiff did not demonstrate that there was an outcome determinative conflict between the applicable laws of Connecticut and Minnesota, and, accordingly, the trial court cannot be faulted for its failure to perform a choice of law analysis.

Ill

The plaintiff next claims that the court improperly determined that good standing certification encompassed financial good standing in addition to academic good standing. Specifically, the plaintiff argues that the requirements for good standing status are contained in the university’s student services handbook (handbook) and that the handbook governs all matters pertaining to the law school and its students. We disagree.

“[T]he basic legal relation between a student and a private university or college is contractual in nature. . . . [T]here seems to be no dissent from [the] proposition that the catalogues, bulletins, circulars, and regulations of the institution determine the contractual relationship between the student and the educational institution. ... [A] court that is asked to enforce an asserted contract between a student and his university must examine the oral and written expressions of the parties in light of the policies and customs of the particular institution. . . . Because a student bases his or her decision to attend a college or university, in significant part, on the documents received concerning core matters, such as faculty, curriculum, requirements, costs, facilities and special programs, application of contract principles based on these documents and other express or implied promises, consistent with the limitations expressed in Gupta v. New Britain General Hospital, 239 Conn. 574, 687 A.2d 111 (1996), appears sound.” (Citations omitted; internal quotation marks omitted.) Johnson v. Schmitz, 119 F. Sup. 2d 90, 93 (D. Conn. 2000).

In correspondence to the plaintiff dated October 4, 1999, the university’s director of financial aid enclosed a financial aid award letter and an eight page document entitled “Policies and Procedures Concerning Financial Aid Awards” (financial aid policy). The court found that the plaintiff received and signed for the financial aid policy. In bold print, on the last page of that policy, is the following statement: “Any student who owes a balance to the Law School will not be issued a transcript and will not be allowed to register for the subsequent semester. In addition, no certification will be forwarded to any external organizations, including the Bar Admissions Boards, that degree requirements have been completed.” In addition to those exhibits, there was testimony by the dean, the associate dean, the secretary to the registrar and the associate dean, the registrar and the bursar that a student had to be in financial good standing in order to register for classes, have transcripts issued, be given permission to take summer courses at another law school for transfer credits or receive good standing certification.

Interpretation of the written terms of a contract and the degree of compliance by the parties are questions of fact to be determined by the trier of fact. Craine v. Trinity College, 259 Conn. 625, 655-56, 791 A.2d 518 (2002). In this case, the educational contract encompassed, inter alia, the handbook and the financial aid policy. The court, as fact finder, determined that a student was required to be in financial good standing in order to be entitled to good standing certification. Because the plaintiff is challenging factual findings, we review those findings under the clearly erroneous standard of review. Because the record amply supports the findings of the court, we cannot conclude that they were clearly erroneous.

IV

The plaintiff next claims that the court improperly found that she was not in financial good standing. She argues that the university mishandled her financial aid, and, consequently, the bursar’s records erroneously reflected an unpaid tuition balance of $11,810.

The court found that “[t]here was no credible evidence that anyone connected to the [university] breached any specific promise to the plaintiff in connection with the handling of the plaintiffs financial aid. The evidence established that any change in the processing of the financial aid was at the express direction of the plaintiff.” The court was free to consider whatever testimony it found credible and to rely on any exhibits admitted as evidence. The plaintiffs argument is nothing more than an attempt to retry the facts. “We cannot retry the facts or pass on the credibility of the witnesses.” (Internal quotation marks omitted.) Porter v. Morrill, 108 Conn. App. 652, 664, 949 A.2d 526, cert. denied, 289 Conn. 921, 958 A.2d 152 (2008). The court’s finding that the plaintiff was not in financial good standing at all times during this controversy was not clearly erroneous.

V

The plaintiffs final claim is that the court rendered a judgment that violates public policy. Without any citation to statutory authority or case law, the plaintiffs argument, contained in one and one-half pages of her brief, appears to be that appellate courts must not focus on an individual case but, rather, “[craft] a rule of law that will do justice in the generality of cases.”

This claim is inadequately briefed, and we decline to review it. “Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” (Internal quotation marks omitted.) Bicio v. Brewer, 92 Conn. App. 158, 172, 884 A.2d 12 (2005).

The judgment is affirmed.

In this opinion the other judges concurred.

       The university never disputed the fact that the plaintiff was in good standing academically and that she never had been charged with behavioral misconduct.

       In the summary order, the court noted: “Plaintiffs conclusory allegations that the presiding District Judge was ‘biased and unfit to sit,’ Appellant’s Br. at 24, are unsupported by the record.”

       The trial judge stated: “I can’t make heads nor tails out of those numbers.'

       Although the plaintiff does not use the term “plain error review” until her reply brief, we are satisfied that the substance of her claim for review of this issue in her principal brief falls under the plain error doctrine. See Practice Book § 60-5.

       The plaintiff also claimed that certain statements of the court constituted a “gratuitous ad hominem attack” on her. We carefully have reviewed those statements and conclude that this claim of the plaintiff is totally without merit and unworthy of any further discussion.

       The plaintiffs additional arguments challenging the ability of the court to understand her claims all involve information that is not a part of the record on appeal. A reviewing court cannot go beyond the proper record before it in the determination of issues presented on appeal. Grunschlag v. Ethel Walker School, Inc., 189 Conn. 316, 320, 455 A.2d 1332 (1983); State v. Hickey, 23 Conn. App. 712, 717 n.2, 584 A.2d 473, cert. denied, 217 Conn. 809, 585 A.2d 1233, cert. denied, 501 U.S. 1252, 111 S. Ct. 2894, 115 L. Ed. 2d 1058 (1991).

       In reviewing the plaintiffs defamation claim, the court stated that it was time barred under both Connecticut and Minnesota law.

       Even though choice of law issues present questions of law over which our review is plenary; American States Ins. Co. v. Allstate Ins. Co., 282 Conn. 454, 461, 922 A.2d 1043 (2007); the analysis of the relevant factors must be considered in the context of the facts of the particular case. See Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 803, 830 A.2d 752 (2003). The court did not provide factual findings for a choice of law analysis.
      Although the plaintiff provides a list of “undisputed facts” in the appendix to her principal appellate brief, the university never conceded that those alleged facts were undisputed. “A fact is not admitted or undisputed merely because it has not been contradicted.” Travis v. St. John, 176 Conn. 69, 70, 404 A.2d 885 (1978).

       In its appellate brief, the university argued that the plaintiffs claim was not reviewable because she failed to provide the requisite analysis for the trial court or for this court in her principal brief. The plaintiff then proceeded to discuss in her reply brief the reasons for her belief that the outcome would have been different if the trial court had applied Minnesota law to her claims. “Claims . . . are unreviewable when raised for the first time in a reply brief.” (Internal quotation marks omitted.) Day v. Gabriele, 101 Conn. App. 335, 341 n.5, 921 A.2d 692, cert. denied, 284 Conn. 902, 931 A.2d 262 (2007).

       In Gupta, our Supreme Court rejected the viability of a cause of action for breach of contract challenging the overall quality of educational programs. Gupta v. New Britain General Hospital, supra, 239 Conn. 591-92. “To limit judicial intrusion into educational decision making, the student must . . . allege nonperformance of a special promise, a promise outside the purview of normal educational expectations.” Faigel v. Fairfield University, 75 Conn. App. 37, 38, 815 A.2d 140 (2003).

       “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed . . . .” (Internal quotation marks omitted.) Porter v. Morrill, 108 Conn. App. 652, 664, 949 A.2d 526, cert. denied, 289 Conn. 921, 958 A.2d 152 (2008).

       In her brief, the plaintiff has interspersed several claims that the court, admitted testimony and documents that contained hearsay and double hearsay statements. There is no analysis of these claims, however, and she has failed to provide references to the transcripts. “We are not required to review issues that have been improperly presented to this court through an inadequate brief.” (Internal quotation marks omitted.) Cooke v. Cooke, 99 Conn. App. 347, 353, 913 A.2d 480 (2007).


author: BEACH, J.

text:
    STATE OF CONNECTICUT v. MICHAEL ANCONA
    (AC 30412)
    Beach, Robinson and Peters, Js.
    Argued February 5
    officially released April 6, 2010

      Vincent F. Sabatini, for the appellant (defendant).

      Nancy L. Chupak, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and David M. Carlucci, deputy assistant state’s attorney, for the appellee (state).
   Opinion

BEACH, J.

The defendant, Michael Ancona, appeals from the judgment of conviction, following a trial to the court, of permitting a dog to roam at large in violation of General Statutes § 22-364 (a). The defendant claims that (1) the court improperly held him responsible as a keeper of a dog when the owner was present and known to the authorities, and (2) the state adduced insufficient evidence to sustain his conviction. We affirm the judgment of the trial court.

The court, as the finder of fact, reasonably could have found the following facts. In the morning of July 5, 2006, Terry Rutenberg was running with her dog, a vizsla, on Wood Pond Road in Farmington. As Ruten-berg and her dog passed the defendant’s house at 79 Wood Pond Road, a muscular pit bull charged from the defendant’s house and ran into the street. The pit bull then began to bite Rutenberg’s dog. Rutenberg called for help. After a while, the defendant emerged from his house and called the pit bull by its name, Goomba. When the defendant was unable to stop the pit bull from continuing to bite Rutenberg’s dog, Jacqueline Ancona, the defendant’s wife, emerged from the house carrying a long pole similar to the type used to clean a swimming pool. She struck the pit bull with the pole, thereby causing the pit bull to scurry away momentarily. Rutenberg picked up her dog and began walking away. The pit bull followed Rutenberg and her dog and jumped on them, biting Rutenberg’s wrist. Thereafter, Ruten-berg’s husband telephoned the police.

Among the officers responding to the scene was Charlene Rogers, a Farmington animal control officer. She knocked on the door of the defendant’s house. When no one answered, she left a business card and a note requesting that someone contact her immediately. Shortly thereafter, the defendant contacted Rogers and told her that he would meet her at his residence. When Rogers arrived at the defendant’s residence, she explained that the pit bull would need to be quarantined for fourteen days. The defendant became “irate, very loud [and] vulgar” and stated that Rogers was not taking “his dog.” The defendant eventually signed the quarantine papers and assisted Rogers in loading the dog onto her truck.

Following a trial to the court, the court found the following. The defendant was a keeper of the pit bull, Goomba. The pit bull left the defendant’s property and attacked Rutenberg’s dog on a public highway. The defendant was found guilty of permitting a dog to roam at large and was fined $75 plus fees and costs. This appeal followed.

I

The defendant first claims that it was improper for the court to hold him responsible for the dog’s actions as the dog’s keeper when the owner of the dog, Jacqueline Ancona, was known to the authorities, lived in the same house as the defendant and was present when the incident occurred. He argues that under such circumstances the owner alone is responsible and not the keeper. We disagree.

This is an issue of statutory construction. “Issues of statutory construction raise questions of law, over which we exercise plenary review. . . . The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. . . .

“When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.” (Internal quotation marks omitted.) State v. Fernando A., 294 Conn. 1, 13, 981 A.2d 427 (2009).

Section 22-364 (a) provides in relevant part: “No owner or keeper of any dog shall . . . allow such dog to roam at large on any portion of any public highway and not attended or under control of such owner or keeper or his agent . . . .” (Emphasis added.)

The defendant’s interpretation of the statute, namely, that a keeper cannot be held liable if the owner is known and present at the time of the incident, is contrary to the plain language of the statute. According to the plain language of § 22-364 (a), an “owner or keeper” is prohibited from allowing a dog to roam on a public highway. (Emphasis added.) The language that “no owner or keeper” shall allow a dog to roam quite clearly indicates that neither those who are owners of dogs nor those who are keepers of dogs may allow a dog to roam. The fact that an owner allows a dog to roam does not exonerate a keeper who also allows the dog to roam. Thus, either the owner or keeper or both can be held liable for a violation of the statute. Accordingly, as the keeper of the dog, the defendant could be held liable under the statute, regardless of whether the owner was present and known to the authorities.

II

The defendant claims, alternatively, that there was insufficient evidence to support a finding that (1) he was the keeper of the dog and (2) the dog had roamed. We disagree.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e 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 [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Hicks, 101 Conn. App. 16, 21, 919 A.2d 1052 (2007).

General Statutes § 22-327 (6) provides that “ l[k]eeper’ means any person, other than the owner, harboring or having in his possession any dog . . . .” “To harbor a dog is to afford lodging, shelter or refuge to it. . . . [Possession cannot be fairly construed as anything short of the exercise of dominion and control [over the dog].” (Citations omitted; internal quotation marks omitted.) Falby v. Zarembski, 221 Conn. 14, 19, 602 A.2d 1 (1992) (discussing § 22-327 [6]). Exercising control over the actions of a dog as well as feeding, watering, housing or otherwise caring for a dog can be evidence of “keeper” status. Id.

The state provided sufficient evidence that the defendant was the keeper of the pit bull. Jacqueline Ancona testified that the defendant sheltered the dog in his house and, on occasion, fed the dog and otherwise cared for the dog by providing financial support, such as paying for veterinary bills. There also was evidence that the defendant exercised control over the actions of the dog. The defendant responded to Rutenberg’s calls for help and attempted to pull the dog away. Additionally, after Rogers left her business card at the defendant’s residence following her first visit when no one was home, the defendant telephoned Rogers and agreed to meet with her to discuss the attack. When, during the meeting, Rogers informed the defendant that she would have to quarantine the dog, the defendant became “irate, very loud [and] vulgar” and stated that Rogers was not taking “his dog.” After the defendant calmed down, he signed the quarantine papers and assisted Rogers in loading the dog onto her truck. There was sufficient evidence, therefore, from which the court reasonably could have concluded that the defendant was a keeper of the dog.

The state also provided sufficient evidence that the dog had roamed. Section 22-364 (a) provides in relevant part: “The unauthorized presence of any dog on the land of any person other than the owner or keeper of such dog or on any portion of a public highway when such dog is not attended by or under the control of such owner or keeper, shall be prima facie evidence of a violation of the provisions of this subsection. . . .” There was evidence that on the day in question, the dog ran off the defendant’s property and onto Wood Pond Road, a public road. The dog then proceeded to attack Rutenberg and her dog.

For the foregoing reasons, there was sufficient evidence presented to the court that the defendant had violated § 22-364 (a).

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also was charged with and found not guilty of nuisance in violation of General Statutes § 22-363.