source: Caselaw Access Project

author: FLYNN, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. WILLIAM J. WARREN
    (AC 22768)
    Dranginis, Flynn and West, Js.

      Argued March 25
    officially released June 24, 2003

      Richard E. Condon, Jr., assistant public defender, for the appellant (acquittee).

      Bruce R. Lockwood, assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellee (state).
   Opinion

FLYNN, J.

The acquittee, William J. Warren, appeals from the judgment of the trial court ordering his continued commitment to the psychiatric security board of review (board) pursuant to General Statutes § 17a-593. He claims that the state failed to prove by clear and convincing evidence that he was a danger to himself or others. We affirm the judgment of the trial court.

The following facts are relevant to our analysis of this appeal. In 1971, the acquittee shot and killed his neighbor during an argument over the neighbor’s explosion of fireworks near guests at the acquittee’s home. The acquittee was charged with murder in the first degree pursuant to General Statutes § 53-9. After a 1974 trial, a jury found him not guilty by reason of mental disease or defect. The court then committed him to the custody of the commissioner of mental health for an indefinite period of time, not to exceed twenty-five years. On July 1,1985, by operation of law, the acquittee was committed to the jurisdiction of the board. See General Statutes § 17a-602. The acquittee’s maximum term of commitment was to expire on May 24, 1999.

About eight months before that expiration, the state filed a petition for the acquittee’s continued commitment; see General Statutes § 17a-593 (c); on the grounds that he remained mentally ill and his release would constitute a danger to himself or others. Subsequently, the acquittee voluntarily extended his commitment several times, and the court eventually heard testimony on the state’s petition for continued commitment on August 24, 2000, and July 2 and 11, 2001. The state presented the testimony of treating psychiatrists Keith Scott and Virginia Johnson. The acquittee testified on his own behalf.

The acquittee conceded the fact that he was mentally ill. The court, therefore, was left to determine whether he was dangerous to himself or others. The court found that the state had proven by clear and convincing evidence that the acquittee was mentally ill and dangerous to others. Consequently, the court concluded that his commitment should be extended by three years from the date of its decision. This appeal followed.

The acquittee raises a single issue on appeal, although he makes several distinct arguments in support of that issue. The issue, as set forth in the acquittee’s brief, is whether “[t]he state’s evidence was insufficient to prove, by clear and convincing evidence, that, if discharged, [the acquittee] presents substantial risk of inflicting harm upon himself or another person.” The acquittee’s arguments are focused principally on the evidentiary sufficiency of the testimony of the two psychiatrists and the facts on which they relied in reaching their opinions that the acquittee was dangerous. The acquittee argues that his own testimony provided the only evidence of his conduct outside of an institutional setting.

We begin our analysis by considering the appropriate standard of review for the present case. The acquittee asserts that the controlling standard of review has not been established in the context of reviewing the court’s findings on a petition by the state for an acquittee’s continued commitment. He argues that we should treat the propriety of the comt’s granting of the state’s petition for continued commitment as a mixed question of law and fact. However, he requests that we treat the question of whether the state presented clear and convincing evidence to support the continued commitment as a question of law that should be reviewed de novo. The state argues that we should apply the clearly erroneous standard of review. We agree with the state.

The standard of review applicable in the present case was set forth recently in State v. Jacob, 69 Conn. App. 666, 798 A.2d 974 (2002), where we said, “The determination as to whether an acquittee is currently mentally ill to the extent that he would pose a danger to himself or the community if discharged is a question of fact and, therefore, our review of this finding is governed by the clearly erroneous standard. See State v. Warren, 169 Conn. 207, 211-12, 363 A.2d 91 (1975). A finding is clearly erroneous 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. In applying the clearly erroneous standard to the findings of a trial court, we keep constantly in mind that our function is not to decide factual issues de novo. Our authority ... is circumscribed by the deference we must give to decisions of the trier of fact, who is usually in a superior position to appraise and weigh the evidence.” (Internal quotation marks omitted.) State v. Jacob, supra, 680; see also United States v. Steil, 916 F.2d 485, 487-88 (8th Cir. 1990) (holding that clearly erroneous standard applies to review District Court’s determination of dangerousness under 18 U.S.C. § 4246); People v. Lang, 189 Ill. App. 3d 384, 390, 545 N.E.2d 327 (1989) (upholding trial court’s commitment order unless manifestly erroneous); In re Rodriguez, 506 N.W.2d 660, 662 (Minn. App. 1993) (applying clearly erroneous standard to finding that appellant had psychopathic personality); In Interest of J.S., 530 N.W.2d 331, 333 (N.D. 1995) (applying clearly erroneous standard to trial court’s order of continued treatment).

We acknowledge that the situation in State v. Jacob, supra, 69 Conn. App. 666, is not identical to the present case because in Jacob it was an acquittee who had filed an application seeking early discharge from the custody and jurisdiction of the board. Id., 669. In that case, the acquittee had the burden of proving by a preponderance of the evidence that he was a person who should be discharged. See General Statutes § 17a-593 (f). In contrast, in the present case where the state petitioned for the continued commitment of the acquittee, the state had the burden of proving by clear and convincing evidence that the acquittee was mentally ill and dangerous to himself or others. See State v. Metz, 230 Conn. 400, 425, 645 A.2d 965 (1994). Given our application of the clearly erroneous standard of review in other contexts, however, we conclude that the lack of perfect identity of facts between Jacob and the present case does not warrant a departure from the clearly erroneous standard of review.

We have applied the clearly erroneous standard of review in other contexts in which the trial courts’ conclusions implicated rights no less fundamental than those involved here. For example, when the state has petitioned for a termination of parental rights, pursuant to General Statutes § 17a-112, we apply the clearly erroneous standard of review to the court’s determination that the petition is supported by clear and convincing evidence. See, e.g., In re Brea B., 75 Conn. App. 466, 469-70, 816 A.2d 707 (2003). We also review the sufficiency of the evidence in support of a court’s forcible medication of a defendant under the clearly erroneous standard. See State v. Garcia, 235 Conn. 671, 679, 669 A.2d 573 (1996). In both of these situations, the state has the burden of providing clear and convincing evidence.

We also find persuasive the holding of the United States Court of Appeals for the Eighth Circuit in United States v. Steil, supra, 916 F.2d 487-88. In that case, the defendant, Steil, was found incompetent to stand trial, and the government filed “a petition to determine the present mental condition of an imprisoned person due for release pursuant to Section 4246.” Id., 486. The defendant argued that the District Court erroneously found that the government met its burden of showing by clear and convincing evidence that the defendant’s release would present a substantial risk of bodily injury to another person or serious damage to the property of another as a result of his mental illness. Id. In making its determination of the appropriate standard of review, the court considered the standard of review in two situations that it found analogous: transfers of federal prisoners to mental health hospitals pursuant to 18 U.S.C. § 4245 and determinations regarding a defendant’s competence to stand trial. Id., 487-88. In both of those situations, the reviewing court applies the clearly erroneous standard of review. The Eighth Circuit therefore concluded that the clearly erroneous standard of review was appropriate in cases in which the government requests that a person be committed pursuant to Section 4246. Id., 488.

Furthermore, it would be inappropriate for this court to conduct a de novo review of the evidence, as the acquittee requests, when we are faced with the issue of whether the evidence was sufficient to support the court’s decision. We are not in a position to assess the credibility of the witnesses and reweigh the evidence as a de novo review would require. See State v. Fernandez, 254 Conn. 637, 647-48, 758 A.2d 842 (2000) (declining to apply de novo review to highly fact based decision of trial court on counsel’s motion to withdraw), cert. denied, 532 U.S. 913, 121 S. Ct. 1247, 149 L. Ed. 2d 153 (2001); State v. Santiago, 252 Conn. 635, 640, 748 A.2d 293 (2000) (declining to review de novo trial court’s conclusions as to allegations of juror’s racial bias); Doe v. Connecticut Bar Examining Committee, 263 Conn. 39, 57-58, 818 A.2d 14 (2003) (holding court’s reweighing of evidence improper as de novo review of record).

Having determined that we must apply the clearly erroneous standard of review to the findings of the court as to whether an acquittee is currently mentally ill to the extent that he would pose a danger to himself or the community if discharged, we conclude that the court’s findings in the present case are not clearly erroneous. The court received evidence from several sources by which it could determine whether the acquittee’s release would pose a danger to himself or others. “In reaching its difficult decision, the court may and should consider the entire record available to it, including the defendant’s history of mental illness, his present and past diagnoses, his past violent behavior, the nature of the offense for which he was prosecuted, the need for continued medication and therapy, and the prospects for supervision if released.” State v. Putnoki, 200 Conn. 208, 221, 510 A.2d 1329 (1986).

Scott testified that, for most of the time that the acquittee had been committed, he had the diagnosis of paranoid schizophrenia. The acquittee’s diagnosis changed when tests revealed an abnormality in the hippocampal area of his brain. Scott testified that he diagnosed the acquittee with “personality changes due to right temporal, frontal syndromes, with possible right hippocampal involvement, combined type, paranoid and labile.” The psychiatrists also described the symptoms associated with the acquittee’s mental illness: paranoia, depression and difficulties with stress, anger and impulsivity. The acquittee described his symptoms as well. He testified that he tends to become “very irritated with very little provocation” and that he is “easier to anger than [the] general population.” Scott testified that, although the acquittee understands in a theoretical way the symptoms he experiences, he has difficulty applying that theoretical knowledge to real-life situations so that he is unable to identify when he is acting irrationally. Scott opined that “[the acquittee] has very little insight in how he takes a situation and exaggerates it, though, he could tell you about working memory deficits and how as a result of them he fills in gaps. He doesn’t connect that filling in gaps could lead him to the wrong conclusion because he always comes to, but this time I’m right, and he always comes to that conclusion.”

Evidence of the acquittee’s history of mental illness and the change from past to present diagnoses was considered by the court. For instance, the acquittee testified that, early in the course of his confinement, he lied to his treating physician, telling him that he was hearing voices. This alleged misrepresentation apparently was motivated by noise in the jail where he was being detained at the time. Due to his low tolerance for stress, the acquittee was unable to cope with the noise, and so he lied about hearing voices and was diagnosed as being paranoid schizophrenic. The court noted this testimony in its decision when it stated, “an individual who admits to inducing an inaccurate diagnosis that endured for decades by lying to the experts is hardly an appropriate source for this court to use for determining his own readiness for reentry into the community.”

The court also received evidence of the acquittee’s past violent behavior, including the offense for which he was prosecuted. The acquittee was charged with the murder of his next-door neighbor on July 5, 1971. According to his statement given shortly after the incident, the acquittee shot his neighbor at close range with a shotgun in the course of an argument between the two men regarding the neighbor’s use of fireworks in close proximity to the acquittee’s property. According to the testimony and the documents contained in the court file, the acquittee has not been physically violent recently. In fact, it appears that the acquittee has made significant progress in being able to express his feelings of anger and frustration verbally rather than physically. The acquittee’s prospects for eventual release are very promising, both psychiatrists indicating that he was responding well to treatment. However, at this time the acquittee still experiences the same problems with the symptoms of his mental illness, which contributed to the acquittee’s shooting of his neighbor. The court commented that the acquittee’s anger, difficulty dealing responsibly with frustration and his “rigid and inflexible” manner were “disturbingly consistent with the conduct that precipitated the 1971 shooting of the [acquittee’s] neighbor over a relatively minor incident.”

The testimony of the psychiatrists called by the state supports the court’s finding of dangerousness. Scott testified that the acquittee’s mental illness presented a significant risk that he would “get himself into something very serious that could result in the injury of someone or himself.” Scott further opined that, with a reasonable degree of medical certainty, the acquittee would injure himself or others within six months of his discharge. Johnson testified that, in her opinion, the acquittee was dangerous to others and recommended that his commitment be extended by five years. We recognize that, in reviewing similar cases, our Supreme Court has stated that “[although psychiatric testimony as to the defendant’s condition may form an important part of the trial court’s ultimate determination, the court is not bound by this evidence. ... It may, in its discretion, accept all, part, or none of the experts’ testimony.” (Citations omitted.) State v. Putnoki, supra, 200 Conn. 221.

The court in the present case accepted the testimony of the state’s expert witnesses, the psychiatrists Scott and Johnson. The court found Scott’s testimony to be both credible and compelling. The court commented that, because Scott had been involved with the acquittee’s treatment for some time and had discovered the brain injury that led to the change in his diagnosis, one might expect Scott “to be the most likely to sing the [acquittee’s] praises.” Both psychiatrists, however, testified that the acquittee was dangerous. The acquittee did not present any expeit testimony to contradict the opinions of the state’s witnesses. Rather, he now chooses to attack the facts on which they based their opinions. More specifically, the acquittee focuses on the facts recited by Scott as supporting his opinion.

During his testimony, Scott recited three examples that he believed demonstrated that the acquittee continued to experience difficulty coping with the symptoms of his mental illness such that his release would pose a significant danger to others. Rather than reciting all three examples at length, we will address merely the first one. We have reviewed the acquittee’s arguments as to the three examples given by Scott, and we conclude that a common theme runs through those arguments. In addressing the three examples given by Scott, the acquittee argues that the situations described do not demonstrate that he is dangerous. If the court had considered those three situations alone, not in the context of the acquittee’s condition, it might have concluded that his behavior was merely erratic or inappropriate. See Addington v. Texas, 441 U.S. 418, 426-27, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979) (“[a]t one time or another every person exhibits some abnormal behavior which might be perceived by some as symptomatic of a mental or emotional disorder, but which is in fact within a range of conduct that is generally acceptable”). However, those situations must be considered in light of his current mental illness. “Whether the individual is mentally ill and dangerous to either himself or others and is in need of confined therapy turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists.” (Emphasis in original.) Id., 429. We need look no further than the first example given by Scott to demonstrate how the court’s judgment is not clearly erroneous.

The first example given by Scott involved an incident in which the acquittee was denied access to an expressive arts group because he did not have a pass. The acquittee became angry and accused Scott of withholding group treatments in an effort to keep him at the facility. The acquittee argues that his reaction of writing a note was a reasonable one. That argument is not disputed. However, the acquittee also argues that, “[w]hile it might be problematic that [the acquittee] thinks a paranoid way when frustrated, it cannot reasonably be concluded from this incident that [the acquittee] presents a danger to himself or others despite being angry and thinking in a paranoid manner.” We disagree. As the court noted, those symptoms of anger and paranoia were the same symptoms that resulted in the death of the acquittee’s neighbor. The court, far from reaching a conclusion that was clearly erroneous, reasonably could have concluded that because the acquittee’s mental illness caused one death and the acquittee is not yet able to control the symptoms of his mental illness, he remains dangerous to others.

The acquittee also argues, citing State v. Jacob, supra, 69 Conn. App. 678-79, that “both the judiciary and the psychiatric community recognize that future predictions of dangerousness are always difficult and often unreliable.” Such a determination of future dangerousness, however, was placed in the hands of the courts by § 17a-593 (c), and the court was required to make that very determination before granting or denying the state’s petition. The acquittee ignores the language of the United States Supreme Court in Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976), which we quoted in the very passage of Jacob to which he cites: “The fact that such a determination is difficult, however, does not mean that it cannot be made. Indeed, prediction of future criminal conduct is an essential element in many of the decisions rendered throughout our criminal justice system. The decision whether to admit a defendant to bail, for instance, must often turn on a judge’s prediction of the defendant’s future conduct. And any sentencing authority must predict a convicted person’s probable future conduct when it engages in the process of determining what punishment to impose. For those sentenced to prison, these same predictions must be made by parole authorities.” Id., 274-75; see also Addington v. Texas, supra, 441 U.S. 429-30 (recognizing need for expert testimony despite fallibility and lack of certainty of psychiatric diagnosis). In the present case, where the court had before it all possible relevant information about the acquittee, the court was qualified to make the difficult determination regarding the acquittee’s future dangerousness. See Jurek v. Texas, supra, 276. We conclude that the court’s finding was not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53-9 subsequently was repealed. We note that, pursuant to General Statutes § 53a-54a, there are no degrees of murder.

       The acquittee described the symptoms of his mental illness as follows: “Lowered ability to handle stress. I tend to take a negative attitude toward situations. I will tend to be irritated over things that other people would not be irritated over. I will feel quite a bit of anxiety because of this condition.”
      We note that the state also presented similar evidence concerning the acquittee’s mental illness.

       The court file also contains a letter dated September 26, 1972, to the court in the underlying criminal case against the acquittee. This letter further illuminates the acquittee’s history of mental illness. In 1972, Mehadin K. Arafeh performed a psychiatric evaluation of the acquittee in order to advise the court as to his competence to stand trial. In the letter, the psychiatrist states the following: “[The acquittee] was unable to maintain a stable work condition, moved a great deal, and was unable to develop stable relationships. Since childhood, he has had difficulty controlling his temper or being able to tolerate frustration. ... He did not have hallucinatory experiences, but did develop feelings of reference and influence, such as someone is following him. He also developed moderate paranoid ideas, feeling that his bosses were against him to the extent that they hired detectives to follow him day and night.”

       It is not clear from the record exactly how long the acquittee persisted in telling people that he was hearing voices or what his motivation may have been for maintaining that alleged deception after he had been committed to the care of the commissioner of mental health and no longer was subjected to the noise of the jail where he had been detained.

       The acquittee’s statement dated July 5, 1971, is contained in the court’s file, and that statement recites in pertinent part: “Today, July 5, 1971 we had three friends at the house for a cook out ....
      “During the afternoon we heard fireworks being shot off on the property next door owned by a Mr. Cassan; however they weren’t so close as to cause us any trouble.
      “Shortly after 8:30 P.M., four of us were playing cards on the porch located just off the kitchen and [one guest] was sleeping outside on the lawn. I was suddenly startled by a loud blast from outside. I looked out and saw [the guest] getting up and could see that he also was startled. I saw a cloud of smoke rising from the adjoining property close to where [the guest] had been laying. I immediately realized that someone had set off a Cherry Bomb and at that point arose from the game in a fit of anger and went directly to my bedroom where I picked up my shot gun (Bay State Single Shot 410 gauge) which was standing next to my bureau and a box of shot gun shells which were on the floor beside the gun. With the gun and shells, still in a fit of anger, I crossed the living room and went out the front door. At that point a second Cherry Bomb went, off. I looked up and saw Michael Cassan, who resides next door with his father. With him were his wife and another fellow and they were standing in the Cassan yard looking at the spot where the bomb had gone off. I called out to Michael Cassan and told him to stop shooting off the fire crackers. I remained on my property and Michael walked toward me, staying on the Cassan property. I told him I didn’t care if he shot off fireworks as long as he got in his car and went down the hill. During the conversation I broke open the shotgun and placed a shell in the chamber in plain view of Michael Cassan as well as his wife and friend. During this time Cassan’s wife kept telling him to come back. He kept coming toward me however and wound up on a large boulder just above me. He said something about neighbors coming after neighbors with guns. I replied that it was the only thing he understood (Referring to a previous incident when he drove his car over my lawn). He said something and I said ‘You’re so close to death I can’t explain it’. He continued arguing and I repeated, shouting, ‘You’re so close to death I can’t explain it’. He continued his argument and I pulled the trigger holding the gun at hip level and the charge struck Cassan in the chest. He flung his arms across his chest, spun, and fell to the ground in a fetal position.
      “His wife then came running toward me, screaming at me, stating that she’d do everything in her power to see that I died. I then said ‘Do you want the other barrel’, knowing full well that it was a single shot. She stopped and at that point I went into my house by the front door, placed the gun down inside the door and immediately called the police. ... I told the officer that answered to send a police car, that I had just shot a man.”

       The two other examples given by Scott, which we have not analyzed herein, involved an incident where the acquittee threw food at a fellow patient and the acquittee’s pursuit of perceived infringements of patients’ rights by staff members.

       Scott gave the following testimony on August 24, 2000: “[T]here was a recent experience where he wanted to no longer attend an expressive art group, which is one of the groups that we believe he should be attending. He didn’t want to continue because another patient was very problematic to him and while that was quite reasonable, we sat down and talked with him, the therapist and I, and he agreed, again, very reasonably, to continue the group. When he went down to the group, he was denied access to it because he didn’t have a pass. And he became furious that they wouldn’t let him in, and as a result of that, if I can find my note, he wrote a note that really describes, I think well, the problems in the thought disorder. He wrote, I quote, ‘Please show me where it has been said by a court of law, a definition of the right to treatment laws and decisions that I absolutely need to a pass, to go to a treatment modality, when told by my doctor and the therapist, moments before?’ You can see by the disconnection in what he wrote how angry he is; he’s actually quite capable of writing reasonably well.
      “He came back to the unit angry. I saw that, we tried to talk, and what I learned in that conversation was that in fact he was quite angry at me. That he accused me of playing head games with him because of testimony I had given to the board several months earlier. His belief was that I had withheld groups from him with in an effort to keep him longer at the facility. Well, that wasn’t the case at all; it was in fact the case that we identified the need for the group, for him to be in that group and that’s how we ended up making that recommendation. So, what that describes to you is the fact that while he has an understanding of others, he still falls into the same trap of limiting his thinking at limes. That when his frustration increases, he decreases his ability to reason, he decreases the options available to him and he starts to think in a paranoid way.”


author: LAVERY, C. J.

text:
    CARDI MATERIALS CORPORATION v. CONNECTICUT LANDSCAPING BRUZZI CORPORATION
    (AC 23131)
    Laveiy, C. J., and Schaller and Peters, Js.
    Argued May 5
    officially released June 24, 2003

      William C. Franklin, for the appellant (defendant).

      Douglas M. Poulin, for the appellee (plaintiff).
   Opinion

LAVERY, C. J.

The defendant, Connecticut Landscaping Bruzzi Corporation, appeals from the judgment of the trial court in a breach of contract action awarding damages to the plaintiff, Cardi Materials Corporation. The dispositive issue in this appeal is whether the court had subject matter jurisdiction. We conclude that the plaintiff did not have standing to bring suit. Accordingly, we reverse the judgment of the trial court and remand the case with direction to dismiss the action.

The following facts and procedural histoiy are necessary for our resolution of that issue. In a complaint dated July 11, 2000, the plaintiff brought an action against the defendant for breach of contract. The parties to the underlying contract were the defendant and Cardi Corporation. Both the plaintiff and Cardi Corporation were incorporated and have their principal places of business in Rhode Island. The plaintiff conceded at oral argument that Cardi Materials Corporation and Cardi Corporation were separate and distinct coiporate entities. In its answer, the defendant admitted the existence of the contract between itself and Cardi Corporation, but denied that the plaintiff was a party to the contract.

The plaintiff called Sean Corrigan, a project manager with Cardi Corporation, as its first witness, and the defendant objected to his testimony. The defendant informed the court that Cardi Coiporation was not named as a plaintiff in the case and that the named plaintiff was not a party to the contract at issue. The court directed the parties to proceed with the evidence and stated that it would entertain any motions to dismiss at an appropriate time. Upon conclusion of the evidence, the defendant made an oral motion to dismiss on the ground that the plaintiff did not have standing, thus depriving the court of subject matter jurisdiction. In response, counsel for the plaintiff stated that “I could move to substitute Cardi Corporation now, which I guess I would formally do to make this accurate.” The plaintiff, however, did not move to substitute Cardi Corporation as the plaintiff, nor did the court order that Cardi Corporation be substituted for the plaintiff. Rather, the court simply denied the defendant’s motion to dismiss and rendered judgment in favor of the plaintiff. This appeal followed.

“It is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time.” (Internal quotation marks omitted.) Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 52, 794 A.2d 498 (2002). “[W]henever a court discovers that is has no jurisdiction, it is bound to dismiss the case . . . .” (Internal quotation marks omitted.) Millward Brown, Inc. v. Commissioner of Revenue Services, 73 Conn. App. 757, 766, 811 A.2d 717 (2002); see also Practice Book § 10-33. “A determination regarding a trial court’s subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Cottman Transmission Systems, Inc. v. Hocap Corp., 71 Conn. App. 632, 636-37, 803 A.2d 402 (2002).

“Where a plaintiff lacks standing to sue, the court is without subject matter jurisdiction. . . . Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.” (Citation omitted; internal quotation marks omitted.) Dime Savings Bank of Wallingford v. Arpaia, 55 Conn. App. 180, 183, 738 A.2d 715 (1999). “Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved. . . . The fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the subject matter of the challenged action] .... Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action].” (Internal quotation marks omitted.) AvalonBay Communities, Inc. v. Orange, 256 Conn. 557, 568, 775 A.2d 284 (2001).

Here, the defendant argues that the plaintiff did not have standing to sue because it was not a party to the contract. We agree. The subject matter of the complaint is the contract, which was between Cardi Corporation and the defendant. The plaintiff in this case was Cardi Materials Corporation, a corporate entity separate and distinct from Cardi Corporation. The plaintiff, therefore, fails to satisfy the first prong of the test for determining whether standing exists. The specific, personal and legal interest in this case belongs solely to Cardi Corporation, which was the party to the contract. The plaintiff, on the other hand, has no such interest because it was not a party to the contract. Because the plaintiff did not have standing to sue, there was no subject matter jurisdiction. See Ardito v. Olinger, 65 Conn. App. 295, 300, 782 A.2d 698, cert. denied, 258 Conn. 942, 786 A.2d 429 (2001). Accordingly, we conclude that the court should not have proceeded to decide the case on the merits, but should have dismissed it for lack of subject matter jurisdiction. See id.

The judgment is vacated and the case is remanded with direction to render judgment dismissing the action.

In this opinion the other judges concurred.

       The defendant also claims on appeal that, assuming the existence of subject matter jurisdiction, the damages awarded by the court were not supported by the evidence. Because we conclude that the court did not have subject matter jurisdiction, we need not address the defendant’s second claim. See, e.g., Bailey v. Medical Examining Board for State Employee Disability Retirement, 75 Conn. App. 215, 216 n.4, 815 A.2d 281 (2003).

       Such a substitution may be permissible pursuant to General Statutes § 52-109 and Practice Book § 9-20.

       No evidence was produced at trial that demonstrated any specific, personal and legal interest in the contract by the plaintiff.


author: DRANGINIS, J.

text:
    GINA M. G. v. WILLIAM C.

    (AC 22187)
    Dranginis, West and Hennessy, Js.

      Argued February 26
    officially released June 24, 2003

      Carole D. Brown, for the appellant (plaintiff).

      Glenn Gazin, for the appellee (defendant).

       In accordance with General Statutes § 54-86e, and ourpolicy of protecting the privacy interests of minor children, we decline to identify the child or others through whom the child’s identity may be ascertained.

   Opinion

DRANGINIS, J.

This matter has been the subject of extensive, unnecessary litigation in which a minor child has been the pawn in a parental conflict in the court system. The plaintiff mother, Gina M. G., appeals from the postjudgment orders of the trial court concerning the right of the defendant father, William C., to have unsupervised visitation with the parties’ child, the court’s finding that the plaintiff was in contempt for violating visitation orders, and the imposition of a fine and awarding of attorney’s fees for the contempt. On appeal, the plaintiff claims that the court abused its discretion by (1) terminating supervised visitation (a) where evidence showed that the child was credible and the defendant was being charged with sexual abuse and risk of injury to a child in separate proceedings, and (b) where the court relied on facts not in evidence or misinformation, and (2) improperly finding the plaintiff in contempt and granting attorney’s fees where (a) the plaintiffs actions were not wilful and (b) the attorney’s fees were unreasonable. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the disposition of the plaintiffs appeal. The plaintiff and the defendant have one daughter, bom in 1996 in California. The parties’ three year extramarital relationship ended soon after the birth of their daughter. A litany of accusations and legal actions ensued thereafter, in the state and federal courts of California and Connecticut, including numerous criminal, civil and family court actions. The parties initially agreed to joint legal custody of their child, with physical custody in the plaintiff and specified visitation for the defendant. The plaintiff, however, moved to Connecticut in 1997, and after litigating the matter, was able to continue living with the child in Connecticut while the defendant traveled from California to visit with the child.

Beginning in 1999 and continuing to the present time, the parties have inundated our legal system with multipie proceedings involving numerous counsel for both parties, several guardians ad litem, orders by various judges, criminal charges and restraining orders, mediation, and two extensive trials that included copious numbers of witnesses and experts, and more than 100 exhibits. The majority of the actions and motions brought before our courts were filed by the plaintiff, who repeatedly presented the same evidence concerning the same set of issues: The defendant’s right to access to his child. The court, Cutsumpas, J., initially held, on July 14, 2000, that the plaintiff and defendant would share joint legal custody of the child and awarded physical custody to the plaintiff. The defendant was granted supervised visitation through August, 2000, and unsupervised visitation beginning in September, 2000.

The plaintiff subsequently alleged that the defendant had sexually abused their child. The child’s pediatrician, the Yale-New Haven Sexual Abuse Clinic, the department of children and families, a forensic pathologist, a licensed clinical investigator, and a counselor and the court listened to and examined the child, as well as viewed a video and audiotape of the child with the defendant, and all ultimately concluded that the defendant had not sexually abused the child. The plaintiff was able, nevertheless, to persuade the court to modify its order on August 16, 2000, and the defendant has since participated in only supervised visitation with the child. The plaintiff also claimed that the guardian ad litem, attorney Barbara Binford, did not remain with the defendant throughout his supervised visitations, as was ordered by the court and, therefore, facilitated the defendant in his sexual abuse against the child. Both the defendant and the guardian ad litem denied those accusations. Past courts have had a difficult time coming to terms with the plaintiffs claims because throughout the time she made her allegations, the plaintiff has permitted the defendant to enjoy supervised visitation and has reported only some alleged incidents to the department of children and families, the police, the courts or the guardian ad litem.

In January, 2001, the plaintiff denied the defendant visitation with their child due to the child’s illness, even though he had arrived from California. The plaintiff again denied the defendant access in February, this time claiming that she thought that the guardian ad litem had to supervise the visits even though the other authorized facilitator, Skane Services, was present. The court held that the plaintiff knew, or should have known, that the order required either a facilitator or the guardian ad litem to be present.

On April 20, 2001, the plaintiff left a note on the front door of her home for the defendant, who again had flown from California, ordering the guardian ad litem and the defendant off the premises and stating that visitation would cease until a pending motion to remove the guardian ad litem was heard. The plaintiff was aware, however, that a party could disregard an order of the court only if the order had been modified or vacated. The order had not been modified or vacated prior to the April, 2001 visit.

This current segment of the never ending saga concerns the plaintiffs appeal from the July 12, 2001 order of the court, Sheedy, J., which provided, among other things, that commencing in July, 2001, the defendant would have unsupervised visitation with the child. The court found that the child was loving and affectionate with the defendant during his visits, and that unsupervised visitation was in the best interest of the child. The court instructed the plaintiff that if she did not comply with that order, she would be fined in an amount equal to the reasonable expenses the defendant incurred in planning for and visiting the child.

Additionally, the plaintiff was found in contempt of the July 14, 2000 court order for refusing to permit the defendant to visit with the child on April 20, 2001. The court order had been clear and unambiguous, and the court found that the plaintiff wilfully violated the order. The plaintiff was fined $1000 for the preparation and argument of the contempt motion, which was to be paid to the defendant’s attorney. Pursuant to General Statutes § 52-256b (a), the court, furthermore, awarded the defendant reasonable attorney’s fees of $11,010 to be paid, as well, to the defendant’s attorney. Additional facts will be provided as necessary.

I

The plaintiff claims that the court’s order allowing the defendant to have unsupervised overnight visitation with the child was improper. The plaintiff asserts that the evidence did not support that modification to the original visitation order. The plaintiff argues that the court failed to weigh the evidence properly concerning the credibility of the child and the criminal charges against the defendant. We disagree.

The authority of a court to render custody, visitation and relocation orders is set forth in General Statutes § 46b-56. “In making or modifying any order with respect to custody or visitation, the court shall ... be guided by the best interests of the child .... The best interests of the child include the child’s interests in sustained growth, development, well-being, and continuity and stability of its environment. . . . The trial court is vested with broad discretion in determining what is in the child’s best interests.” (Citations omitted; internal quotation marks omitted.) Schult v. Schult, 241 Conn. 767, 777, 699 A.2d 134 (1997). It is in that light that we review whether the court abused its discretion.

“The standard of review in family matters is well settled. An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion ... we allow every reasonable presumption in favor of the correctness of its action. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... 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.) Berglass v. Berglass, 71 Conn. App. 771, 775, 804 A.2d 889 (2002); Prial v. Prial, 67 Conn. App. 7, 9-10, 787 A.2d 50 (2001).

“An appellant who seeks to reverse the trial court’s exercise of judicial discretion assumes a heavy burden. . . . Decision making in family cases requires flexible, individualized adjudication of the particular facts of each case. . . . Trial courts have a distinct advantage over an appellate court in dealing with domestic relations, where all of the surrounding circumstances and the appearance and attitude of the parties are so significant. . . . This court may not substitute its own opinion for the factual findings of the trial court. . . . The ultimate question on appellate review is whether the trial court could have concluded as it did.” (Citation omitted; internal quotation marks omitted.) Marlin v. Marlin, 73 Conn. App. 570, 573, 808 A.2d 707 (2002); see also Ford v. Ford, 68 Conn. App. 173, 188, 789 A.2d 1104, cert. denied, 260 Conn. 910, 796 A.2d 556 (2002). “[W]e do not review the evidence to determine whether a conclusion different from the one reached could have been reached.” (Internal quotation marks omitted.) McGinty v. McGinty, 66 Conn. App. 35, 40, 783 A.2d 1170 (2001); Szczerkowski v. Karmelowicz, 60 Conn. App. 429, 432, 759 A.2d 1050 (2000). Thus, “[a] mere difference of opinion or judgment cannot justify our intervention. Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference.” (Internal quotation marks omitted.) Ford v. Ford, supra, 188; Janik v. Janik, 61 Conn. App. 175, 181, 763 A.2d 65 (2000), cert. denied, 255 Conn. 940, 768 A.2d 949 (2001).

The following additional facts are relevant to the plaintiffs claim. The defendant filed a motion, dated April 6, 2001, to terminate supervised visitation and begin unsupervised visitation with his child. On July 12, 2001, the court entered an order permitting the defendant to have unsupervised and overnight visitation with the child. The court previously had afforded a full evidentiary hearing on the motion, heard conflicting evidence from the parties and their witnesses regarding prior visits, and considered criminal allegations made against the defendant and the child’s interaction with him. The court reviewed the credibility of the plaintiff, the defendant, and the experts and witnesses concerning the child’s statements and conduct by both parties. The court found that the child exhibited no fear or anxiety in the presence of the defendant, was happy in his company and behaved appropriately with him. The court concluded that the allegations made against the defendant were unsubstantiated and frivolous, and that it was in the best interest of the child to have unsupervised visitation with him.

On the basis of our review of the record, files and transcripts, we conclude that there was ample evidence demonstrating that the court properly applied the best interest of the child standard to its ruling on the motion to modify the visitation order. The court’s findings were not clearly erroneous and, thus, the court did not abuse its discretion. See generally McGinty v. McGinty, supra, 66 Conn. App. 41. Accordingly, we reject the plaintiffs first claim.

II

The plaintiff next claims that the court improperly concluded that she wilfully violated the order of the court providing the defendant access to their child and that the court improperly imposed fines and awarded unreasonable attorney’s fees for her contempt. We are not persuaded.

A

The plaintiff asserts that her actions on April 20,2001, were not wilful. “A finding of contempt is a question of fact, and our standard of review is to determine whether the court abused its discretion in failing to find that the actions or inactions of the [plaintiff] were in contempt of a court order. ... To constitute contempt, a party’s conduct must be wilful. . . . Noncompliance alone will not support a judgment of contempt.” (Citation omitted; internal quotation marks omitted.) Prial v. Prial, supra, 67 Conn. App. 14.

“[0]ur review [of a finding of civil contempt] is technically limited to questions of jurisdiction such as whether the court had authority to impose the punishment inflicted and whether the act or acts for which the penalty was imposed could constitute a contempt. . . . This limitation originates because by its very nature the court’s contempt power . . . must be balanced against the contemnor’s fundamental rights and, for this reason, there exists the present mechanism for the eventual review of errors which allegedly infringe on these rights. . . . We have found a civil contempt to be improper or erroneous because . . . the findings on which it was based were ambiguous and irreconcilable . . . and the contemnor, through no fault of his own, was unable to obey the court’s order.” (Internal quotation marks omitted.) In re Jeffrey C., 261 Conn. 189, 194-95, 802 A.2d 772 (2002); Eldridge v. Eldridge, 244 Conn. 523, 527-28, 710 A.2d 757 (1998); In re Brianna B., 66 Conn. App. 695, 705-706, 785 A.2d 1189 (2001); Wilson v. Wilson, 38 Conn. App. 263, 271, 661 A.2d 621 (1995).

The plaintiff argues that the court improperly found that her conduct was wilful when she denied the defendant access to their child on April 20, 2001. In support of the plaintiffs claim that her actions were not wilful, she refers to her testimony before the court in May, 2001, in which she stated that she believed the filing of the motion to remove the guardian ad litem stayed the defendant’s visitation until the issue was resolved. The plaintiff also testified that even if she understood that she had to follow the court’s order while waiting for the motion to be heard, she did not have any other choice but to deny the visitation because the guardian ad litem was biased and did not perform her job effectively. The plaintiff did not trust the defendant to be with the child, considering his past and pending criminal charges, especially if the guardian ad litem was not performing her duties sufficiently. The plaintiff alleged that the guardian ad litem did not watch the defendant and the child at all times during visitations.

“[A] court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was wilful.” Wilson v. Wilson, supra, 38 Conn. App. 275-76. “The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot refry the facts or pass on the credibility of the witnesses.” (Internal quotation marks omitted.) Id., 273.

We conclude that the findings of the court were not clearly erroneous. The court’s order of July 14, 2000, was clear and unambiguous, and stated that the defendant was to receive visitation rights. The modifications made subsequently were also plain and unequivocal. Nowhere in the order did it state that access to the child could be suspended while motions were pending in the court concerning the same. The plaintiff was not a newcomer to the family litigation process.

“It is axiomatic that a person may not pick and choose which court orders he will obey. ... A party’s opinion concerning the necessity for a particular order does not excuse his disobedience.” (Citation omitted.) Meehan v. Meehan, 40 Conn. App. 107, 110, 669 A.2d 616, cert. denied, 236 Conn. 915, 673 A.2d 1142 (1996). “There is no privilege to disobey a court’s order because the alleged contemnor believes that it is invalid . . . [or] should not be obeyed. A contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed and thus become a retrial of the original controversy.” (Internal quotation marks omitted.) Wilson v. Wilson, supra, 38 Conn. App. 275 n.8.

In its order of July 12, 2001, the court concluded that the plaintiff could not possibly have believed that she no longer was required to obey the order of the court concerning visitation. The plaintiff had the power to obey the orders of the court and, therefore, the court properly found that her violations of its orders were wilful. The facts support the finding that the plaintiffs conduct was wilful. See, e.g., In re Brianna B., supra, 66 Conn. App. 706. Despite the plaintiffs claims to the contrary, our review of the transcripts of the proceedings and the record in this case establish that the court gave thorough consideration to the circumstances surrounding the plaintiffs violation of the court’s order of visitation. A full evidentiary hearing was held at which the plaintiff presented extensive testimony regarding the defendant’s past indiscretions and sexual abuse charges alleged against him, the bias of the guardian ad litem and the child’s reaction to visitation with the defendant. The court did not, however, find the plaintiffs claims to be credible. We will not disturb that finding on appeal.

It is necessary for the court, not the plaintiff, to interpret the court’s order and to determine when the defendant is allowed access. The plaintiff had the obligation to alert the court if she believed the defendant should not be granted visitation before she unilaterally decided not to comply with the specific order. See Berglass v. Berglass, supra, 71 Conn. App. 779. The plaintiff had a fair opportunity to present evidence on the contested issue, filed a motion regarding the same and should have waited for the court’s response. The court did not abuse its discretion by holding the plaintiff in contempt of the July 14, 2000 order and all of the later modifications.

B

The plaintiff next asserts that the court improperly fined her for contempt and awarded the defendant’s attorney both the fine and his legal fees. The plaintiff claims that the fees were unreasonable because they encompassed not only the hearing and the motion for contempt, but work performed on other motions. “Sanctions for civil contempt may be either a fine or imprisonment; a fine may be remedial or it may be the means of coercing compliance with the court’s order and compensating the complainant for losses sustained. . . . The fine imposed for a civil contempt may be payable to the complainant as compensation for [the party’s] loss.” (Internal quotation marks omitted.) In re Brianna B., supra, 66 Conn. App. 707; Lord v. Mansfield, 50 Conn. App. 21, 34, 717 A.2d 267, cert. denied, 247 Conn. 943, 723 A.2d 321 (1998). “Because a compensatory fine may be imposed as part of a civil contempt, our sole remaining inquiry is whether the trial court abused its discretion.” Lord v. Mansfield, supra, 34. After reviewing the record and transcripts, we conclude that the court did not abuse its discretion by fining the plaintiff as a civil punishment for her contempt of the court’s order.

As for the award of attorney’s fees for the defendant, “[o]rdinarily, courts in this country do not award attorney’s fees to the prevailing party unless . . . the payment of such fees is provided for by statute. . . . The authority of the trial court to award attorney’s fees following a contempt proceeding is well settled. Once a contempt has been found, [§ 52-256b (a)] establishes a trial court’s power to sanction a noncomplying party through the award of attorney’s fees. . . . The award of attorney’s fees in contempt proceedings is within the discretion of the trial court.” (Citations omitted; internal quotation marks omitted.) Berglass v. Berglass, supra, 71 Conn. App. 787-88. “Whether to allow counsel fees and in what amount calls for the exercise of judicial discretion.” (Internal quotation marks omitted.) Esposito v. Esposito, 71 Conn. App. 744, 747, 804 A.2d 846 (2002). In this case, the court ordered that the plaintiff pay attorney’s fees pursuant to § 52-256b (a) to compensate the defendant for expenses incurred in enforcing compliance with the orders of the court. The court properly applied the statute to the facts of this case. We find, therefore, that there was not an abuse of discretion.

The plaintiff contends that even if attorney’s fees should have been awarded, the court improperly deprived her of a hearing on the matter. We have, previously, “upheld an award of attorney’s fees despite the fact that the trial court did not hold an evidentiary hearing on the subject. In upholding the award of attorney’s fees over [a party’s] argument that such an award was improper in the absence of a hearing, we relied on our Supreme Court’s statement that courts may rely on their general knowledge of what has occurred at the proceedings before them to supply evidence in support of an award of attorney’s fees.” (Internal quotation marks omitted.) Id., 747-48. In this action, the court had been familiar with counsel’s preparation and presentation of the case. Both parties were made aware that the court would be considering attorney’s fees at the end of the trial. The plaintiff did not submit any evidence concerning the attorney’s fees, nor did she object to the defendant’s presentation of evidence regarding the same. Accordingly, the court did not need to hold an evidentiary hearing on the subject of attorney’s fees, and the court did not abuse its discretion in awarding attorney’s fees to the defendant in the absence of such a hearing.

The plaintiff, finally, assumes that the reasonableness of the attorney’s fees is determined solely with reference to the amount of time the attorney actually spent working on the contempt motion. The plaintiff claims that the attorney’s fees improperly included the preparation and argument of various other motions heard on July 12, 2001, and, thus, were not limited to the motion for contempt. The determination of reasonableness, however, takes into consideration a range of factors, of which time and labor expended are one consideration. See id.; Tufano v. Tufano, 18 Conn. App. 119, 125, 556 A.2d 1036 (1989).

It was within the discretion of the court to determine whether the effort expended was reasonable under the circumstances and to rely on its familiarity and expertise with the complex legal issues involved to determine the reasonableness of the attorney’s fees. In this case, the attorney’s fees represented the time and expense the defendant incurred for the preparation of the numerous postjudgment motions and proceedings, including but not limited to the contempt motion, in an effort to enforce the July 14, 2000 postjudgment order and modifications thereto. Although the attorney’s fees included the preparation of motions other than the contempt motion, all of the motions and their preparation stem from the plaintiffs refusal to allow the defendant access to the child, which inevitably led to her contempt. Due to the number of contempt motions filed by the defendant in an effort to require the plaintiff to comply with the court’s order of access to the child, the length of the trial and the violations found by the court, we cannot maintain that the award of attorney’s fees was an abuse of discretion. See, e.g., Tufano v. Tufano, supra, 18 Conn. App. 121-26; see also Friedlander v. Friedlander, 191 Conn. 81, 86-87, 463 A.2d 587 (1983). Accordingly, we reject the plaintiffs second claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs first and third claims have been distilled into the first claim discussed in this opinion in light of the fact that both the plaintiffs claims concern evidentiary findings.

       The plaintiff was not married at the time of the affair and has not married. The defendant was married at the time of the affair and remains married.

       The criminal charges against the defendant are still pending.

       The August 16, 2000 order for supervised visitation was ordered, on October 20, 2000, to remain in full force and effect until further order of the court.

       Attorney Barbara Binford and Skane Services were the two authorized facilitators agreed on by the parties and the court to accompany the defendant on his supervised visits.

       General Statutes § 46b-56 provides in relevant part: “(a) In any controversy before the Superior Court as to the custody or care of minor children ... the court may at any time make or modify any proper order regarding the education and support, of the children and of care, custody and visitation ....
      “(b) In making or modifying any order with respect to custody or visitation, the court shall (1) be guided by the best interests of the child, giving consideration to the wishes of the child if the child is of sufficient age and capable of forming an intelligent preference . . . .”

       By denying the defendant access, the plaintiff improperly acted as a gatekeeper to the defendant’s visitation. “[I]t is incumbent upon the parties to seek judicial resolution of . . . the language of judgments.” (Internal quotation marks omitted.) Berglass v. Berglass, supra, 71 Conn. App. 778. “It is inappropriate for the custodial parent in a high conflict case to be given decision-making control over the noncustodial parent’s access to minor children.” Id.

       General Statutes § 52-256b (a) provides in relevant part: “When any person is found in contempt of any order or judgment of the Superior Court, the court may award to the petitioner a reasonable attorney’s fee and the fees of the officer serving the contempt citation, such sums to be paid by the person found in contempt.”


author: FOTI, J.

text:
    ALEX TYSON v. JAMES F. SULLIVAN, COMMISSIONER OF TRANSPORTATION, ET AL.
    (AC 22508)
    Foti, Bishop and West, Js.
    Argued March 18
    officially released June 24, 2003

      Ronald D. Williams, Jr., for the appellant (named defendant).

      Mary-M. Dalton Burgdorff, for the appellee (plaintiff).
   Opinion

FOTI, J.

The defendant James F. Sullivan, the commissioner of transportation, appeals from the trial court’s denial of his motion to dismiss count one of the plaintiffs complaint for lack of subject matter jurisdiction. The defendant claims that the court improperly concluded that sovereign immunity did not deny the court subject matter jurisdiction because (1) the plaintiffs action fell within the scope of the state highway defect statute, General Statutes § 13a-144, and (2) the plaintiffs statutorily required notice of claim was not patently defective in its description of his injuries. We affirm the judgment of the trial court.

The record reveals the following procedural history. On May 2, 2000, the plaintiff, Alex Tyson, sent notice of his intent to bring an action pursuant to § 13a-144 against the defendant for personal injuries arising out of an incident that had occurred on March 1, 2000. The plaintiff sent the notice via certified mail, which the defendant received on May 4, 2000. Thereafter, on March 12,2001, the plaintiff filed a two count complaint.

In his complaint, the plaintiff alleged that, on the morning of March 1,2000, he was a passenger in a motor vehicle traveling east on Interstate 84 in Waterbury. He further alleged that as the vehicle exited the highway onto the Hamilton Avenue off ramp, boulders, rocks and other debris that had broken loose from an adjacent rock ledge spilled over the jersey barriers on the right side of the highway and struck the vehicle, injuring him. Count one of the complaint asserts that the defendant bleached his statutory duty to maintain the roads in a reasonably sale condition in violation of § 13a-144.

On May 2, 2001, the defendant filed a motion to dismiss count one. He argued that the plaintiffs claim, as it was alleged, fell outside the scope of § 13a-144 and that because the state had not otherwise consented to a lawsuit, the doctrine of sovereign immunity barred the action. The defendant also argued that the plaintiff had failed to satisfy the statute’s notice requirement because his notice had not set forth a general description of his injuries and that such failure was equally fatal to the plaintiffs claim. Consequently, the defendant argued, the court lacked subject matter jurisdiction and should dismiss the claim.

The plaintiff filed an objection in which he maintained that his action fell within the scope of § 13a-144 and that the notice received by the defendant was adequate, thereby giving the court proper jurisdiction over the claim. The court agreed and, by memorandum of decision filed October 22, 2001, denied the defendant’s motion to dismiss. The defendant now appeals from that decision.

The standard of review that guides our resolution of the defendant’s claims is well settled. “In ruling upon whether a complaint survives a motion to dismiss, a corut must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . Furthermore, whether subject matter jurisdiction exists is a question of law, and our review of the court’s resolution of that question is plenary.” (Citation omitted; internal quotation marks omitted.) Berlin Batting Cages, Inc. v. Planning & Zoning Commission, 76 Conn. App. 199, 203-204, 821 A.2d 269 (2003). Likewise, whether the plaintiffs notice was patently defective and, thus, failed to meet statutory requirements also is a question of law requiring our plenary review. See Ozmun v. Burns, 18 Conn. App. 677, 681, 559 A.2d 1143 (1989).

I

The defendant first claims that the plaintiff failed to allege a highway defect sufficient, as a matter of law, to bring his claim within the scope of § 13a-144. The defendant argues that because of that failure, he retains immunity from suit under the doctrine of sovereign immunity and, thus, the court lacks subject matter jurisdiction over the claim. We disagree.

We first briefly discuss the law underlying the defendant’s claim. “[Sovereign immunity is an immunity, not simply from liability, but from suit as well.” Shay v. Rossi, 253 Conn. 134, 165, 749 A.2d 1147 (2000). Because sovereign immunity implicates the court’s subject matter jurisdiction, the existence of the immunity creates a proper basis for granting a motion to dismiss; Amore v. Frankel, 228 Conn. 358, 364, 636 A.2d 786 (1994); unless, through legislation, the state has consented to be sued, thereby waiving its sovereign immunity. See Martinez v. Dept. of Public Safety, 263 Conn. 74, 78-79, 818 A.2d 758 (2003). A statute that explicitly waives immunity from suit also implicitly waives immunity from liability. Id.

In enacting § 13a-144, the legislature explicitly waived the state’s sovereign immunity in certain actions in which the injuries allegedly resulted from a defective highway. Oberlander v. Sullivan, 70 Conn. App. 741, 745, 799 A. 2d 1114, cert. denied, 261 Conn. 924, 806 A.2d 1061 (2002). “[Bjecause there was no right of action against the sovereign state at common law, a plaintiff, in order to recover, must bring himself within § 13a-144.” White v. Burns, 213 Conn. 307, 321, 567 A.2d 1195 (1990). The statute “is to be strictly construed in favor of the state”; id.; however, “when aplaintiff alleges sufficient facts to comport with the legislative waiver contained in § 13a-144, the complaint will withstand a challenge by the state on the basis of sovereign immunity.” Amore v. Frankel, supra, 228 Conn. 365.

A complaint is subject to a motion to dismiss if the plaintiff does not satisfy the statute’s notice requirement; see Oberlander v. Sullivan, supra, 70 Conn. App. 745; or if the complaint alleges that the area where the injury occurred is not an area for which the state has a statutory duty to maintain and repair. Amore v. Frankel, supra, 228 Conn. 365. Similarly, if, accepting the allegations in the complaint as true, the court can conclude that, as a matter of law, the condition that allegedly caused the plaintiffs injury does not constitute a highway defect within the scope of § 13a-144, the court likewise should dismiss the complaint.

Our Supreme Court has defined the type of highway defect that gives rise to liability under § 13a-144 as “[a]ny object in, upon, or near the traveled path, which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon, or which, from its nature and position, would be likely to produce that result.” (Internal quotation marks omitted.) Comba v. Ridgefield, 177 Conn. 268, 270, 413 A.2d 859 (1979). “[T]he defect need not be a part of the roadbed itself’; id.; however, objects that “have no necessary connection with the roadbed or public travel, which expose a person to danger, not as a traveler, but independent of the highway, do not ordinarily render the road defective.” Id. If the alleged defect is not a part of the roadway, “it must be so direct a menace to travel over the way and so susceptible to protection and remedial measures which could be reasonably applied within the way that the failure to employ such measures would be regarded as a lack of reasonable repair.” Id., 271.

The defendant contends that our Supreme Court’s holding in Comba v. Ridgefield, supra, 177 Conn. 268, necessarily controls our determination in the present case of whether the plaintiff has alleged a defect within the scope of the statutory duty imposed on the state by § 13a-144. We disagree.

In Comba, the court held that, as a matter of law, an overhanging branch that fell from a rotted tree located near a highway onto a motor vehicle, injuring a passenger inside, did not constitute a defect as contemplated by General Statutes § 13a-149, the municipal highway defect statute. The court explained: “The condition alleged . . . did not obstruct, hinder or operate as a menace to travel. It was a condition that could cause injury, but that injury could result even to one who was not a traveler on the highway. A person could be injured by the limb; but the use of the highway, as such, would not necessarily have led to the injury.” Comba v. Ridgefield, supra, 177 Conn. 271.

In his principal brief, the defendant argues that cliffs or rock ledges adjacent to the highway, like trees, “have no necessary connection with the roadbed or public travel” and falling rocks, like falling tree limbs, “expose a person to danger, not as a traveler, but independent of the highway.” The defendant also argues that in both Comba and the present action, the condition allegedly causing the accident was not “in the roadway or otherwise obstructing or hindering traffic thereon.” We are not persuaded.

We first note that “ [w]hether a condition in a highway constitutes a defect must be determined in each case on its own particular circumstances.” Chazen v. New Britain, 148 Conn. 349, 353, 170 A.2d 891 (1961). We do not agree with the defendant’s arguments that the holding in Comba necessarily controls the outcome in the present action. We conclude that the present action is distinguishable both factually and as a matter of public policy.

It is of no consequence that in the present case, the rock ledge and its accumulation of debris were not on or within the highway prior to the accident. Recovery under § 13a-144 is not limited to injuries caused by defects in the “traveled portion” of the highway. See Serrano v. Burns, 248 Conn. 419, 426, 727 A.2d 1276 (1999). A defect within the scope of the statute includes a condition located near the traveled path that, from its nature and position, would be likely to obstruct or to hinder one’s use of the highway for traveling. Hay v. Hill, 137 Conn. 285, 288-89, 76 A.2d 924 (1950); Hewison v. New Haven, 34 Conn. 136, 142 (1867).

The rock ledge was located directly alongside the highway, thus “near the traveled path.” Loose rocks and other debris situated on a rock ledge are objects that, by their very “nature and position,” likely could dislodge and roll onto the lane of a highway thus obstructing or hindering travel. Signs along the highway warning of falling rocks and barriers erected along po'rtions of the highway to prevent such debris from spilling onto the roadway attest to that fact.

Further, in Comba, the court’s analysis relied on its determination that the tree limb could have harmed someone other than a traveler on the highway. In contrast, we find it highly improbable in the present action that the falling rocks and other debris could have injured anyone other than someone traveling on the highway. Additionally, while the Comba court found that the tree had no necessary connection to the roadbed or travel, we cannot make such a determination in the present case. Rock ledges along the highway often are created in the construction of the highway. Although not specifically alleged in this case, such a fact would certainly constitute a necessary connection to the roadbed.

In reaching its conclusion, the Comba court also stated that to fall within the scope of the highway defect statute, an alleged condition not in the roadway “must be so direct a menace to travel over the way and so susceptible to protection and remedial measures which could be reasonably applied within the way that the failure to employ such measures would be regarded as a lack of reasonable repair. ” Comba v. Ridgefield, supra, 177 Conn. 271. A falling tree branch and a falling rock each pose a direct danger to safe travel. We find a distinction between the two conditions, however, when we consider whether reasonably applicable remedial measures exist to alleviate the danger presented and whether, as a matter of public policy, the state should have a duty to employ such measures.

Common sense suggests that there are an extraordinary number of trees located along roadways covered by the highway defect statute, many with overhanging limbs similar to the situation in Comba. The condition of a tree, a living thing, is always changing, which would necessitate numerous and frequent inspections and reinspections to avoid the problem presented in Comba. Absent specific notice as to a particular tree limb or such obvious signs of damage or rot sufficient to establish constructive knowledge on the part of the defendant, the danger imposed by any particular tree branch falling into the road likely is not susceptible to remedial measures that could be reasonably applied. In other words, it might be unreasonable as a matter of public policy to include in the defendant’s duty to “keep in repair” the state’s roadways the necessity to conduct thorough inspections of all trees located along the state’s highways in an effort to avoid liability for accidents such as the one that occurred in Comba.

The availability and practicability of remedial measures to alleviate the dangers inherent in those rock ledges located near the highway may be viewed differently. There are certainly far fewer rock ledges or areas with the potential to cause the danger at issue in the present case, and the condition of those areas is far more immutable than the condition of living trees. It is not unreasonable to expect the state to take reasonable measures to inspect those areas or otherwise alleviate the dangers posed by rocks and other debris falling onto the highway. That is especially true in those instances in which the construction of the roadway itself created the rock ledge or the debris on the roadway.

We conclude that under the circumstances of this case, the allegations in the complaint were sufficient as a matter of law to bring the action within the scope of § 13a-144, effectively waiving the defendant’s sovereign immunity.

II

We next address the defendant’s claim that the plaintiffs notice failed to comply with statutory requirements. The defendant argues that the required notice of claim was patently defective in its description of the plaintiff’s injuries. We disagree.

As previously stated, “[t]he notice requirement contained in § 13a-144 is a condition precedent which, if not met, will prevent the destruction of sovereign immunity.” Lussier v. Dept. of Transportation, 228 Conn. 343, 354, 636 A.2d 808 (1994). The notice requirement of § 13a-144 provides in relevant part: “No such action shall be brought . . . unless notice of such injuiy and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner. . . .” General Statutes § 13a-144.

“The requirement as to notice was not devised as a means of placing difficulties in the path of an injured person. The puipose [of notice is] . . . to furnish the commissioner with such information as [will] enable him to make a timely investigation of the facts upon which a claim for damages [is] being made. . . . The notice requirement is not intended merely to alert the commissioner to the occurrence of an accident and resulting injury, but rather to permit the commissioner to gather information to protect himself in the event of a lawsuit. . . . The puipose of the requirement of notice is to furnish the party against whom a claim was to be made such warning as would prompt him to make such inquiries as he might deem necessary or prudent for the preservation of his interests, and such information as would furnish him a reasonable guide in the conduct of such inquiries, and in obtaining such information as he might deem helpful for his protection.” (Citations omitted; internal quotation marks omitted.) Lussier v. Dept. of Transportation, supra, 228 Conn. 354.

Ordinarily, the question of the adequacy of the notice is one for the trier of fact. Id. Only if the notice is patently defective should the court decide the question as a matter of law. Id. “As long as notice provides reasonable definiteness, it is not patently insufficient and the adequacy of the notice becomes an issue for the jury.” (Emphasis added; internal quotation marks omitted.) Tedesco v. Dept. of Transportation, 36 Conn. App. 211, 214, 650 A.2d 579 (1994).

The plaintiffs notice stated in relevant part: “As a result of said incident, [the plaintiff] was violently thrown about in his vehicle causing him to sustain injuries to his neck and back.” The defendant argues that the notice does not specify the nature or type of injuries sustained, only the location of the alleged injuries; therefore, the injuries might be minimal or very serious. The defendant also notes that the complaint alleges additional physical injuries that are not in the notice and are unrelated to the neck and back. The defendant contends in his principal brief that such a notice is patently defective because it “would preclude the commissioner from being able to assess the magnitude or degree of exposure presented as to each claim and prioritize his investigative resources accordingly.” We are not persuaded.

Our Supreme Court has made clear that an adequate notice “need not be expressed with the fullness and exactness of a pleading.” (Internal quotation marks omitted.) Lussier v. Dept. of Transportation, supra, 228 Conn. 356. Although the plaintiffs notice did not give an exact medical description of the plaintiffs injuries, no appellate decision has held that such specificity is necessary to comply with the notice requirement of § 13a-144, and we do not feel compelled to make such a holding in the present case. The plaintiffs notice provided a sufficient description to apprise the defendant of the seriousness of the injuries allegedly sustained. The notice did not simply state that the plaintiff was injured. See Martin v. Plainville, 240 Conn. 105, 108, 689 A.2d 1125 (1997) (holding that written notice stating that plaintiff “was injured” lacked general description of injuries and was insufficient as matter of law). The notice stated that the plaintiff was “violently thrown about in his vehicle . . . .” A person who was violently thrown about his vehicle likely did not suffer merely trivial injuries. Given the time frame in which a plaintiff must provide notice to preserve the right to bring an action under the statute, in many instances, the exact nature and extent of injuries may not be fully known. Such a description was sufficient to “prompt [the defendant] to make such inquiries as he might deem necessary or prudent for the preservation of his interests . . . .” (Internal quotation marks omitted.) Lussier v. Dept. of Transportation, supra, 228 Conn. 354.

We conclude that the plaintiffs description of his injuries was sufficient to meet the reasonable definiteness test. Therefore, the court properly concluded that the notice did not patently fail to meet the statutory requirements and denied the defendant’s motion to dismiss.

The judgment is affirmed.

In this opinion the other judges concurred.

       The city of Waterbury is a defendant as to count two of the plaintiffs complaint; however, the city is not a party to this appeal, which addresses only count one. Therefore, throughout this opinion, we refer to the commissioner of transportation as the defendant.

       We generally consider a denial of a motion to dismiss as interlocutory in nature and, therefore, not a final judgment for the purpose of an appeal. Nevertheless, our Supreme Court has held that when, as in the present case, the basis of the motion is a colorable claim of sovereign immunity, a denial of a motion to dismiss is a final judgment from which an appeal may lie. Shay v. Rossi, 253 Conn. 134, 164-65, 749 A.2d 1147 (2000) (en banc).

       General Statutes § 13a-144 provides in relevant part: “Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the Commissioner of Transportation to keep in repair . . . may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court. No such action shall be brought except within two years from the date of such injury, nor unless notice of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner. . . . The requirement of notice specified in this section shall be deemed complied with if an action is commenced, by a writ and complaint setting forth the injury and a general description of the same and of the cause thereof and of the time and place of its occurrence, within the time limited for the giving of such notice.”

       The plaintiff sent an amended notice via certified mail on July 11, 2000, which the defendant received on July 13, 2000.

       The plaintiff claims that he sustained, inter alia, ipjuries to his spine, shoulder and head, as well as emotional distress, mental anguish, pain and suffering, and general loss of earnings.

       The plaintiff alleged that the defendant breached his statutory duty in one or more of the following ways: He failed (1) to inspect the rock ledge reasonably for loose rocks and other debris; (2) to remove loose rocks and other debris from the rock ledge properly; (3) to reinforce the rock ledge properly to prevent loose rocks and other debris from falling onto the main travel portion of the highway; (4) to maintain the area of the rock ledge properly to prevent loose roclos and other debris from falling onto the travel portion of the highway; (5) to place sufficient jersey barriers to prevent loose rocks and other debris that fell from the rock ledge from falling onto the travel portion of the highway; (6) to maintain the travel portion of the highway properly; (7) to remove properly rocks and other debris that previously had fallón from the rock ledge onto the travel portion of the highway; (8) to warn the plaintiff or other approaching motorists properly of the hazardous and dangerous conditions then existing on the travel p ortion of the highway; (9) to place barriers properly around the rocks and other debris that had fallen from the rock ledge onto the travel portion of the highway; (10) the highway was not reasonably safe for the purposes and uses intended; (11) he knew or should have known, in the exercise of reasonable care and inspection, of the hazardous conditions and should have corrected them; and (12) the hazardous and dangerous conditions existed for a sufficient period of time so that he knew or should have known of them, and should have taken measures to remedy and correct them, but failed to do so.
      Count two asserts that the city of Waterbury in a similar fashion breached its statutory duty under General Statutes § 13a-149, the municipal highway defect statute. See footnote 1.

       “Ordinarily, the question of the adequacy of notice is one for the jury and not for the court, and the cases malte clear that this question must be determined on the basis of the facts of the particular case. . . . Before submitting the question to the jury, however, the trial court must first determine whether, as a matter of law, a purported notice patently meets or fails to meet . . . the statutory requirements.” (Citations omitted; internal quotation marks omitted.) Ozmun v. Burns, supra, 18 Conn. App. 681.

       In his amended notice, the plaintiff restated his sustained injuries as being “to his neck, back, headaches, shoulder and teeth.” Because the defendant received that amended notice outside of the statutorily prescribed sixty day period, however, we consider only the original notice. See Bresnan v. Frankel, 224 Conn. 23, 25 n.2, 615 A.2d 1040 (1992).

       Although Martin involved a discussion of the notice requirement of General Statutes § 13a-149, the municipal highway defect statute, we see no reason not to treat the statutes consistently in the present context. See Smith v. New Haven, 258 Conn. 56, 64 n.6, 779 A.2d 104 (2001).