author: BISHOP, J.

text:
    STEVEN SZEKERES ET AL. v. JOYCE SZEKERES ET AL. STEVEN SZEKERES ET AL. v. CHAKER DRIDI ET AL.
    (AC 30337)
    (AC 30338)
    (AC 30339)
    Bishop, Robinson and Schaller, Js.

      Argued December 2, 2010
    officially released March 1, 2011

      Thomas J. Weihing, with whom were Virginia C. Foreman, and, on the brief, Janice L. Rosenfeld and
      John T. Bochanis, for the appellants (plaintiffs in all three cases).

      Zbigniew J. Rozbicki and William J. Melley III, for the appellees (defendant Joyce Szekeres et al. in AC 30337 and AC 30338).

      William J. Melley III, for the appellees (defendant Chaker Dridi et al. in AC 30339).
   Opinion

BISHOP, J.

These consolidated appeals stem from a family dispute regarding the use and occupancy and ownership of certain real property. The plaintiffs, Steven Szekeres and Denise Miller, appeal from the judgments of the trial court, following a jury trial, in favor of the various defendants, Joyce Szekeres, Chaker Dridi and Stephanie Dridi. We affirm the judgments of the trial court.

The following facts, as reasonably could have been found by the jury, and procedural history are relevant to our resolution of the plaintiffs’ appeals. Until approximately February 1, 2000, Steven Szekeres and his wife, Miller, resided at 39 Hillside Lane, Monroe, which was owned by Steven Szekeres’ mother, Joyce Szekeres. Steven Szekeres resided in that home pursuant to an agreement with his mother, who resided primarily in Florida since the time of her retirement in the mid-1990s. On September 14, 1999, however, the plaintiffs were served with an eviction notice. On November 22, 1999, the parties entered into a stipulated agreement providing that the plaintiffs would vacate the premises, with a stay of execution through February 1, 2000.

Stephanie Dridi, Steven Szekeres’ sister and Joyce Szekeres’ daughter, and Stephanie Dridi’s husband, Chaker Dridi, resided in West Hartford. On September 19, 1999, the plaintiffs went to the Dridis’ residence in West Hartford to retrieve some tools that the Dridis had borrowed from Steven Szekeres. The Dridis, along with Joyce Szekeres, met Steven Szekeres and his wife on the front lawn where a verbal altercation ensued. Stephanie Dridi called the police, and the plaintiffs left the premises with no arrests being made.

Subsequently, Stephanie Dridi went to the West Hartford police station and spoke with the victim’s advocate, Denise C. Schaeffer. Stephanie Dridi told Schaeffer that she was concerned because Steven Szekeres had made threats against the defendants in the past and she knew that he had guns. Schaeffer then invited Joyce Szekeres to come to the police station to speak with her. Joyce Szekeres told Schaeffer that Steven Szekeres had been troubled for a long time, but that the incident on September 19,1999, made her fearful because he appeared to be getting increasingly violent with her. She also told Schaeffer that Steven Szekeres owned guns and that he had threatened her in the past. Consequently, on November 12, 1999, Steven Szekeres was arrested in connection with the incident that occurred on September 19, 1999, and was charged with assault of a victim sixty or older in the third degree, threatening and breach of the peace. Steven Szekeres pleaded no contest to the breach of the peace charge and, on November 30, 1999, the court issued an order that neither the plaintiffs nor the defendants were to have any contact with each other.

On February 1,2000, at the request of Joyce Szekeres, the Dridis went to the Monroe home. On their arrival, they saw that the driveway had not been shoveled and that there were no footprints or tire marks in the snow. They discovered a very large ice accumulation where it appeared that an outdoor faucet had been left in the open position. In the back of the house, they noticed that a number of windows had been left open despite the cold temperatures. After Stephanie Dridi gained access to the house by breaking a window in the kitchen door, she discovered that doors had been nailed shut with two-by-four boards, the heat was set to its highest temperature setting, wallpaper had been randomly tom from the walls, fixtures were missing, the kitchen wall had a large handwritten message on it, a washing machine was missing, feces were on the floor, and the house was littered with trash and smelled of urine. There were also three cats caged in the garage. Stephanie Dridi called the Monroe police to report the damage and called the animal control officer to tend to the cats.

Shortly after the police arrived, the plaintiffs arrived with a moving van to retrieve their remaining items, including the cats. The police officers told the plaintiffs that they could remove belongings from the garage only and that the Dridis would remain inside the house. At some point, while retrieving his items, Steven Szekeres climbed a ladder that led to the room in the house in which the Dridis were waiting. Although Steven Szek-eres alleged that Chaker Dridi assaulted him, the police officers did not witness any injury to support that allegation. Steven Szekeres was arrested and charged with disorderly conduct for failing to obey the police order to limit his presence to the garage. Following a trial, Steven Szekeres was found not guilty of disorderly conduct.

On the basis of the foregoing facts, the plaintiffs instituted three legal actions against the defendants in the Superior Court. Additionally, the plaintiffs instituted two federal actions in which the defendants were named. The federal actions were dismissed, and the three Superior Court cases were consolidated for purposes of a single jury trial. On June 5, 2008, the jury returned verdicts in each of the actions, from which the plaintiffs have appealed. We address each of the appeals in turn.

I

AC 30337

On March 7, 2000, the plaintiffs filed a complaint in housing court in Bridgeport, against the defendants, alleging forcible entry and detainer, as well as illegal lockout and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The defendants filed an answer and special defenses alleging that (1) the premises had been abandoned, (2) the lease had expired, (3) nuisance and (4) fraud. Joyce Szekeres also filed a counterclaim alleging wilful and malicious destruction in count one, and statutory theft in count two. The plaintiffs filed a reply to the special defenses, as well as an answer to the counterclaim.

The housing matter was transferred to the regular civil docket in the Fairfield judicial district on March 29, 2006. The three consolidated cases were tried to a jury. The court directed a verdict against the plaintiffs as to their CUTPA claim. At the conclusion of trial, the jury returned verdict forms and interrogatories to the court. The jury found in favor of the defendants on the remaining counts of the plaintiffs’ complaint, namely, the counts alleging forcible entry and detainer, illegal lockout and conversion. As to the counterclaim, the jury found in favor of Joyce Szekeres on count one, which alleged wilful and malicious destruction of property, and awarded her damages of $35,000. The jury found in favor of the plaintiffs on Joyce Szekeres’ statutory theft claim. This appeal followed.

A

In this appeal, the plaintiffs first claim that the jury’s verdicts regarding forcible entry and illegal lockout and detainer, conversion, and wilful and malicious destruction of property were against the weight of the evidence. In essence, the plaintiffs claim that the evidence in support of their position was so compelling that the jury could not have found against them. We view this, then, as a sufficiency of evidence claim. “[T]he standards governing our review of a sufficiency of evidence claim are well established and rigorous. . . . [I]t is not the function of this court to sit as the seventh juror when we review the sufficiency of the evidence . . . rather, we must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, supports the jury’s verdict .... In making this determination, [t]he evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable. ... In other words, [i]f the jury could reasonably have reached its conclusion, the verdict must stand, even if this court disagrees with it.” (Internal quotation marks omitted.) Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 645-46, 904 A.2d 149 (2006).

1

As to the plaintiffs’ claim for forcible entry and illegal lockout and detainer, the plaintiffs cite to General Statutes § 47a-43 (a), which provides: “When any person (1) makes forcible entry into any land, tenement or dwelling unit and with a strong hand detains the same, or (2) having made a peaceable entry, without the consent of the actual possessor, holds and detains the same with force and strong hand, or (3) enters into any land, tenement or dwelling unit and causes damage to the premises or damage to or removal of or detention of the personal property of the possessor, or (4) when the party put out of possession would be required to cause damage to the premises or commit a breach of the peace in order to regain possession, the party thus ejected, held out of possession, or suffering damage may exhibit his complaint to any judge of the Superior Court.” In their brief to this court, the plaintiffs argue that “there was compelling evidence and testimony that would have supported a finding for the plaintiffs.” As noted, however, that is not the standard by which we review the jury’s verdict. Rather, we examine the record to determine if there is evidence upon which the jury could reasonably have based its verdict.

The defendants raised three special defenses, on which the court instructed the jury, namely, abandonment, entry pursuant to a court order and emergency. Here, although there was evidence that the Dridis entered the house by breaking a window in the kitchen door and that they changed the locks, there was also evidence from which the jury could have determined that the plaintiffs had abandoned the property. In addition to the facts that the windows were left open despite the frigid temperatures, the thermostat was set on its highest setting, and there were trash and feces strewn about the house, two neighbors testified that they had seen no signs of occupancy for some time. They further testified that there were no tire tracks or footprints in the snow, and that testimony was corroborated by Stephanie Dridi’s observation. Although the plaintiffs disputed this testimony by asserting that the driveway had, in fact, been cleared of snow, it was within the jury’s province to credit or discredit that evidence. Additionally, there was evidence presented that the windows in the house were open despite the frigid temperatures and that the outside faucet had been left on for some time. On this basis, the jury could have found that the Dridis’ entry into the house was valid on the basis of an emergency. On the basis of the foregoing, we cannot conclude that the jury’s verdict was against the weight of the evidence.

2

The plaintiffs also contend that the evidence did not support the jury’s finding against them on their claim of conversion. “[Conversion is some unauthorized act which deprives another of his property permanently or for an indefinite time; some unauthorized assumption and exercise of the powers of the owner to his harm.” (Internal quotation marks omitted.) Lawton v. Weiner, 91 Conn. App. 698, 718, 882 A.2d 151 (2005).

The plaintiffs testified that the actions of the defendants in locking them out of the house deprived them of the opportunity to retrieve some of their personal property. Stephanie Dridi testified, however, that there was nothing remaining in the house that belonged to the plaintiffs or that was of any value. Because there was evidence that none of the plaintiffs’ belongings remained at the residence, the jury was free to credit that testimony and return a verdict against the plaintiffs on their conversion count.

3

The plaintiffs also contend that the jury’s finding that the plaintiffs wilfully and maliciously destroyed the property was not supported by the evidence. In their appellate brief, the plaintiffs claim that there was no evidence that the parties did anything intentionally and that, in fact, there was no evidence that Miller committed any acts that reasonably could be construed as destruction of property. The plaintiffs assert that there was no damage done to the property at all. In support of their position, the plaintiffs testified, as a justification for the state of disrepair of the home, that renovations were being made to the home. They argue that the only testimony that there was any destruction to the property came from Stephanie Dridi. Again, however, the plaintiffs are asking this court to weigh the evidence, and they ignore the well established principle that the jury may credit or discredit any of the evidence and testimony presented at trial. Thus, the jury was free to discredit the testimony of the plaintiffs and credit that of Stephanie Dridi. Additionally, the plaintiffs ignore the testimony of Chaker Dridi, who also testified as to the damage to the property, and Lois Zandy, a real estate agent, whose testimony regarding the damage to the property essentially mirrored the testimony of the Dridis. Miller’s father also testified that he helped his daughter and Steven Szekeres move at the end of January, 1999, and he observed tom wallpaper and graffiti on the wall. The jury reasonably could have concluded that the observations of those witnesses were not consistent with the plaintiffs’ assertion that they were renovating the property, but instead, that they had damaged the property. Accordingly, we cannot conclude that the jury’s verdict was not supported by the evidence.

B

The plaintiffs also claim that the court improperly directed a verdict against them as to their CUTPA claim. We disagree.

“We review a trial court’s decision to direct a verdict for the defendant by considering all of the evidence, including reasonable inferences, in the light most favorable to the plaintiff. ... A verdict may be directed where the decisive question is one of law or where the claim is that there is insufficient evidence to sustain a favorable verdict.” (Internal quotation marks omitted.) C & H Associates Ltd. Partnership v. Stratford, 122 Conn. App. 198, 203, 998 A.2d 833 (2010).

“[General Statutes §] 42-110b (a) provides that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons]. ... All three criteria do not need to be satisfied to support a finding of unfairness.” (Internal quotation marks omitted.) Harris v. Bradley Memorial Hospital & Health Center, Inc., 296 Conn. 315, 350, 994 A.2d 153 (2010). “Whether the defendant is subject to CUTPA is a question of law, not fact.” (Internal quotation marks omitted.) Muniz v. Kravis, 59 Conn. App. 704, 712, 757 A.2d 1207 (2000). “[W]hether a defendant’s acts constitute . . . deceptive or unfair trade practices under CUTPA, is a question of fact for the trier, to which, on appellate review, we accord our customary deference. . . . [W]here the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Internal quotation marks omitted.) Naples v. Keystone Building & Development Corp., 295 Conn. 214, 228, 990 A.2d 326 (2010).

The defendants moved for a directed verdict, claiming that this case does not involve a business practice, but, rather, it simply concerns a mother who owns a house from which she is seeking to evict her son. The plaintiffs objected, claiming that there was a business relationship between the plaintiffs and Joyce Szekeres in that the plaintiffs were tenants of Joyce Szekeres. In directing a verdict in favor of the defendants on the CUTPA claim, the court reasoned that “it does not rise to the level of a trade or business practice that’s covered by [CUTPA]

In support of their position that the court improperly directed a verdict on their CUTPA count, the plaintiffs cite to Conaway v. Prestia, 191 Conn. 484, 464 A.2d 847 (1983), for the proposition that a landlord-tenant relationship can be the basis for such a claim. Although we acknowledge the basic principle that a landlord-tenant relationship can provide the basis for a CUTPA action, the facts in Conaway are readily distinguished from those at hand. In Conaway, our Supreme Court held that the defendants’ conduct constituted unfair or deceptive acts in violation of CUTPA in that the defendants clearly had the responsibility for obtaining certificates of occupancy, and their collection of rent without those certificates offended the public policy embodied in General Statutes § 47a-57 of the Landlord Tenant Act of ensuring minimum standards of housing safety and habitability. Id., 493.

Here, the evidence revealed that Joyce Szekeres allowed her son, Steven Szekeres, to live in her home where Steven Szekeres had resided for his entire life, and that he paid her rent in accordance with a verbal agreement. “Not every relationship, even assuming a landlord-tenant one, comes within the terms of CUTPA. There must be some nexus with a public interest, some violation of a concept of what is fair, some immoral, unethical, oppressive or unscrupulous business practice or some practice that offends public policy.” Muniz v. Kravis, supra, 59 Conn. App. 715. An informal and familial, not to mention singular, situation such as the one at hand cannot reasonably be construed as a trade or business practice within the meaning of CUTPA. Accordingly, the court properly directed a verdict as to the plaintiffs’ CUTPA claim.

II

AC 30338

On April 15, 2004, the plaintiffs filed another complaint against Joyce Szekeres and Stephanie Dridi alleging slander, intentional infliction of emotional distress and negligent infliction of emotional distress. On January 26, 2007, Joyce Szekeres and Stephanie Dridi filed an answer and special defenses, alleging that (1) the claims were barred by the statute of limitations, (2) the statements were truthful, (3) there was a superseding or intervening cause of third parties and (4) any damages were proximately and directly caused by Steven Szekeres as a result of his illegal acts and conduct. The plaintiffs filed an answer to the special defenses on January 30,2007. As noted, the three consolidated cases were tried to a jury. The court directed a verdict against the plaintiffs as to their claim for intentional infliction of emotional distress. At the conclusion of trial, the jury returned verdict forms and interrogatories to the court and found in favor of Joyce Szekeres and Stephanie Dridi on the remaining counts of the plaintiffs’ complaint. This appeal followed.

A

In this appeal, the plaintiffs claim that the evidence presented at trial did not support the jury’s verdict. In reviewing these claims, we must determine whether the jury reasonably could have concluded as it did. See part I A of this opinion.

In this action, the plaintiffs’ claims for negligent infliction of emotional distress and slander are based on representations made by Joyce Szekeres and Stephanie Dridi to the victim’s advocate that Steven Szekeres owned a handgun and had threatened them with it. The plaintiffs also alleged that Joyce Szekeres falsely and maliciously told a police detective that Steven Szekeres had previously put that gun to his own head while it was loaded. Consequently, the plaintiffs alleged, the police searched the plaintiffs’ residence for that handgun, resulting in emotional distress. The police did not find a handgun at the plaintiffs’ residence.

1

To prevail on a claim of negligent infliction of emotional distress, a plaintiff is required to prove that “(1) the defendant’s conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiffs distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant’s conduct was the cause of the plaintiffs distress.” Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003). Here, Steven Szekeres testified that it was “traumatic” when the police searched his house. He also argues in his brief that, because Joyce Szekeres and Stephanie Dridi knew that he had a history of depression and mental illness, it was foreseeable that their actions could have resulted in emotional distress. Stephanie Dridi testified, however, that her brother was likely distressed not over the search of the home but because his mother did not approve of his upcoming marriage to Miller. Stephanie Dridi also testified that Steven Szekeres had suffered with emotional issues for a long time preceding the events leading to the plaintiffs’ claims. Based on this conflicting evidence, and because it was the jury’s role to weigh and credit the evidence, we cannot conclude that the verdict was improper.

2

The plaintiffs further claim that the jury’s verdict regarding their claim for slander was against the weight of the evidence. “A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him . . . .” (Internal quotation marks omitted.) Spears v. Elder, 124 Conn. App. 280, 287, 5 A.3d 500, cert. denied, 299 Conn. 913,10 A.3d 528 (2010). “Slander is oral defamation.” (Internal quotation marks omitted.) Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn. App. 835, 848, 888 A.2d 104 (2006).

The court properly instructed the jury that the statements made by Joyce Szekeres and Stephanie Dridi to the victim’s advocate and the police are subject to qualified immunity unless they are made with malice. See Gallo v. Barile, 284 Conn. 459, 463, 935 A.2d 103 (2007). “Actual malice requires that the statement, when made, be made with actual knowledge that it was false or with reckless disregard of whether it was false. . . . A negligent misstatement of fact will not suffice; the evidence must demonstrate a purposeful avoidance of the truth. . . . Malice in fact is sufficiently shown by proof that the [statement was] made with improper and unjustifiable motives.” (Internal quotation marks omitted.) Id., 463 n.6.

The plaintiffs contend that the jury’s verdict was not supported by the evidence because they established every element of defamation. The plaintiffs claim that the statements of Joyce Szekeres and Stephanie Dridi were made with actual knowledge that they were false or with reckless disregard of whether they were false because Joyce Szekeres and Stephanie Dridi did not know whether the alleged guns existed at the time they reported the plaintiffs to the police or the victim’s advocate. Joyce Szekeres and Stephanie Dridi reported, however, that Steven Szekeres had previously threatened them with guns that he owned at the time at which the threats were made. The jury could have determined that the statements of Joyce Szekeres and Stephanie Dridi were not knowingly false or malicious on the basis of their knowledge that Steven Szekeres owned guns in the past and that he possibly still owned them. Thus, we cannot conclude that the jury’s verdict was against the weight of the evidence presented at trial.

B

The plaintiffs also claim that the directed verdict as to their intentional infliction of emotional distress count was improper and prejudicial. To prove intentional infliction of emotional distress, a plaintiff must demonstrate “(1) that the [defendant] intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiffs distress; and (4) that the emotional distress sustained by the plaintiff was severe. . . . Whether a defendant’s conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine. . . . Only where reasonable minds disagree does it become an issue for the jury. . . .

“Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society .... Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” (Citations omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000).

Although the conduct of Joyce Szekeres and Stephanie Dridi in this case may have caused the plaintiffs some stress, we cannot conclude that the court, in the exercise of its gatekeeping function, incorrectly determined that their conduct was not outrageous and beyond the bounds of decency. Accordingly, the court did not improperly grant a directed verdict against the plaintiffs on their claim for intentional infliction of emotional distress.

III

AC 30339

On September 13,2004, the plaintiffs filed a five count complaint against Stephanie Dridi and Chaker Dridi. Joyce Szekeres was not a defendant in this action. The allegations in the plaintiffs’ complaint arise from their claim that, on February 1, 2000, the Dridis illegally entered their home and changed the locks, and from their claim that the arrest and criminal prosecution of Steven Szekeres for disorderly conduct was a result of an incident between the parties that took place that day. The plaintiffs alleged statutory theft, trespass, malicious prosecution and intentional and negligent infliction of emotional distress. The Dridis filed an answer as to all five counts, twelve special defenses and a counterclaim. The counterclaim was brought on behalf of the Dridis and Joyce Szekeres, alleging vexatious litigation under General Statutes § 52-568 and intentional infliction of emotional distress. As noted, this third case was consolidated with the other two cases for trial to a jury. The court directed a verdict against the plaintiffs as to their claim for malicious prosecution. The jury found in favor of the Dridis on all of the counts of the plaintiffs’ complaint and in favor of the defendants on both counts of their counterclaim. As to count one of the counterclaim, vexatious litigation, the jury awarded Joyce Szekeres $85,000 and the Dridis $17,500 each. On count two of the counterclaim, intentional infliction of emotional distress, the jury awarded Joyce Szekeres $100,000 but awarded no damages to the Dridis. This appeal followed.

On June 9, 2009, while this appeal was pending, the plaintiffs filed a motion to dismiss the judgment against them that was rendered in favor of Joyce Szekeres on the counterclaim because she was not a party to this action. The court determined that it lacked subject matter jurisdiction over Joyce Szekeres’ counterclaim and, accordingly, vacated the judgment and the attendant damages in the amount of $185,000 that had been rendered in this case in her favor.

A

The plaintiffs first claim that the evidence presented at trial did not support the jury’s verdict in favor of the Dridis on all counts of their complaint. Again, in reviewing these claims, we determine whether, based on the evidence presented at trial, the jury reasonably could have reached its verdict. See part I A of this opinion.

1

We begin with the plaintiffs’ claim of statutory theft. The plaintiffs alleged that the Dridis broke into their home and “changed the locks, thereby seizing [the plaintiffs’] dwelling and their property contained therein.” “Statutory theft pursuant to [General Statutes] § 52-564 ... is synonymous with larceny under General Statutes § 53a-119, which provides in relevant part that ‘[a] person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner.’ ” Weiss v. Weiss, 297 Conn. 446, 470 n.18, 998 A.2d 766 (2010). Because there was testimony that there was nothing in the house of any value that belonged to the plaintiffs, the jury was free to credit that testimony, which supports its verdict, and not the plaintiffs’ conflicting claims.

2

The plaintiffs also contend that the jury improperly found in favor of the Dridis on their trespass claim. The court properly instructed the jury: “The essentials of an action for trespass are: (1) ownership or possessory interest in the premises by the plaintiffs; (2) invasion, intrusion or entry by the defendant affecting the plaintiffs’ exclusive possessory interest; (3) done intentionally; and (4) causing direct injury.” See Murphy v. EAPWJP, LLC, 123 Conn. App. 316, 330, 1 A.3d 1171, cert. granted on other grounds, 298 Conn. 930, 5 A.3d 489 (2010). Because there was evidence presented from which the Dridis could have believed that the plaintiffs had abandoned the property, the jury reasonably could have found in favor of the Dridis on the plaintiffs’ trespass claim.

3

The plaintiffs also claim that the jury’s verdicts in favor of the Dridis on the plaintiffs’ claims for intentional and negligent infliction of emotional distress were contrary to the evidence presented at trial. Because there was no evidence that the conduct of the Dridis was outrageous or beyond the bounds of decency, the jury properly found in favor of the Dridis on the plaintiffs’ claim for intentional infliction of emotional distress. And, again, because there was evidence presented that the Dridis could have thought that the plaintiffs had abandoned the property, they could not have foreseen that entering the home and changing the locks would have caused emotional distress to the plaintiffs. Thus, we cannot conclude that the jury’s verdict was improper.

B

The plaintiffs next claim that the court improperly directed a verdict in favor of the Dridis on the plaintiffs’ claim for malicious prosecution. As noted, on February 1, 2000, the plaintiffs arrived at the subject property to retrieve the remainder of their belongings. In an attempt to prevent an altercation, the police segregated the plaintiffs from the Dridis while the plaintiffs retrieved their belongings from the garage. In contravention of the police order, Steven Szekeres entered the room in the house in which the Dridis were waiting, and a dispute ensued. Consequently, Steven Szekeres was charged with disorderly conduct. Following a trial, Steven Szekeres was found not guilty.

“A vexatious suit is a type of malicious prosecution action, differing principally in that it is based upon a prior civil action, whereas a malicious prosecution suit ordinarily implies a prior criminal complaint.” (Internal quotation marks omitted.) Keller v. Beckenstein, 122 Conn. App. 438, 443, 998 A.2d 838, cert. granted on other grounds, 298 Conn. 921, 4 A.3d 1227, 5 A.3d 486 (2010). “To establish a cause of action for either vexatious litigation or malicious prosecution, a plaintiff must prove want of probable cause, malice and a termination of suit in the plaintiffs favor.” (Internal quotation marks omitted.) Harris v. Bradley Memorial Hospital & Health Center, Inc., supra, 296 Conn. 330.

In rendering a directed verdict in favor of the Dridis, the court noted that the criminal prosecution was not initiated by the Dridis and that it could not find that “the jury would be able to find from [the] evidence [presented at trial] that the Dridis did anything more than provide potentially incriminating information to the Monroe police.” Here, although Steven Szekeres was found not guilty of the criminal offense with which he was charged, we agree with the court that the prosecution was not initiated by the Dridis, and, further, that there was no evidence presented that the prosecution was pursued with malice. Accordingly, the court properly directed a verdict in favor of the Dridis on the plaintiffs’ claim for malicious prosecution.

C

The plaintiffs also claim that the evidence presented at trial did not support the jury’s verdict in favor of the Dridis on the counterclaim alleging vexatious litigation. We are not persuaded.

The Dridis’ claim for vexatious litigation, brought pursuant to § 52-568, arises from two federal lawsuits filed against them by the plaintiffs. In the first federal lawsuit, the plaintiffs alleged that Stephanie Dridi, Joyce Szekeres and Schaeffer, the victim’s advocate, acted “jointly and in concert” with each other and “under color of law,” in violation of 42 U.S.C. § 1983, in maliciously procuring the issuance of a search warrant for the plaintiffs’ home. The plaintiffs alleged that the actions of Stephanie Dridi, Joyce Szekeres and Schaeffer violated their rights under the fourth and fourteenth amendments to the United States constitution and Connecticut common law. The federal court granted the motions for summary judgment filed by Stephanie Dridi, Joyce Szekeres and Schaeffer on all federal claims and declined to retain supplemental jurisdiction over the remaining state law claims. See Szekeres v. Schaeffer, 304 F. Sup. 2d 296 (D. Conn. 2004). In the other federal lawsuit, the plaintiffs alleged that Chaker Dridi and Stephanie Dridi, acted “jointly and in concert” with Monroe police officers Peter Howard and Mark Caufield, and “under color of law,” in violation of 42 U.S.C. § 1983, in maliciously prosecuting Steven Szekeres on the basis of his actions on February 1, 2000, and deprived the plaintiffs of their property rights in violation of the fourth amendment to the United States constitution. The federal court granted summary judgment in favor of Howard and Caulfield, having previously dismissed the plaintiffs’ constitutional claims against the Dridis, and declined to exercise supplemental jurisdiction over the plaintiffs’ state claims and, therefore, dismissed them. See Szekeres v. Howard, United States District Court, Docket No. 3:01CV2099 (MRK), 2004 WL 722240 (D. Conn. March 26, 2004).

1

In challenging this verdict, the plaintiffs first contend that there was no termination of the federal lawsuits in the Dridis’ favor. The plaintiffs denied that the actions were terminated in a manner favorable to the Dridis because the judgments in the federal court only addressed issues of federal law and the plaintiffs’ claims under the United States constitution. “[W]e have never required a plaintiff in a vexatious suit action to prove a favorable termination either by pointing to an adjudication on the merits in his favor or by showing affirmatively that the circumstances of the termination indicated his innocence or nonliability, so long as the proceeding has terminated without consideration.” DeLaurentis v. New Haven, 220 Conn. 225, 251, 597 A.2d 807 (1991).

Here, because all of the federal claims brought by the plaintiffs against the Dridis were dismissed, they were terminated in favor of the Dridis. Thus, we cannot conclude that the jury’s verdict in favor of the Dridis on their vexatious litigation claim was improper.

2

The plaintiffs also claim that the evidence was insufficient to show that the Dridis sustained any damages as a result of the vexatious litigation claim. As the court instructed the jury, “money damages [maybe awarded] for all injuries or losses legally suffered due to the commencement and prosecution of the vexatious suit. Compensable injuries and losses may include legal fees for the cost of defending the underlying actions in federal court and any other economic and noneconomic injuries and losses which are claimed by the defendants and supported by the evidence.” The court further instructed the jury that it could award economic and/ or noneconomic damages, but limited economic damages to those damages sustained in association with the federal lawsuits only, not the cases at hand. The court indicated that the Dridis were seeking noneco-nomic damages for “mental anguish, humiliation, embarrassment, mortification, shame, fear and damage to reputation.” The plaintiffs contend that the only evidence as to the economic damages incurred by the Dridis, namely, attorney’s fees, pertained to all of the lawsuits collectively, not only the federal litigation. Thus, the plaintiffs contend, the jury accurately could not have awarded damages on that basis. The plaintiffs, however, ignore the fact that the jury could have based its award on noneconomic factors. Because the verdict forms, to which the plaintiffs did not object, did not separate economic from noneconomic damages, it is not possible to discern the basis for the jury’s award. Accordingly, the plaintiffs’ claim must fail.

The judgments are affirmed.

In this opinion the other judges concurred.

       We refer in this opinion to Joyce Szekeres, Chaker Dridi and Stephanie Dridi collectively as the defendants. We will refer to them individually by name when necessary.

       The plaintiffs’ original complaint also alleged assault and battery, but they ultimately withdrew that count.

       We note that the jury was not required to indicate which, if any, of the defendants’ special defenses it credited in reaching its verdict.

       At oral argument, the plaintiffs’ counsel conceded that intent could have been inferred by the type of damage that was done, i.e., graffiti on the walls, tom wallpaper, and trash and feces strewn about.

       We note that there was no evidence presented to indicate a business or landlord-tenant relationship between the plaintiffs and the Dridis.

       The plaintiffs also claim that the jury charge and the verdict form and interrogatories were confusing, ambiguous and prejudicial and that they were improper in that they combined the two plaintiffs with respect to the issues of liability and damages. The defendants contend, however, and we agree, that the plaintiffs’ claims are not preserved in that they did not take exception to the court’s instructions to the jury, nor did they object to the verdict form and interrogatories provided to the jury. “An appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of exception. The exception shall be taken out of the hearing of the jury.” Practice Book § 42-16. Because the plaintiffs failed to preserve these claims, we decline to address them. See State v. Jay, 124 Conn. App. 294, 310 and n.8, 4 A.3d 865 (2010).

       The plaintiffs also claim that the court improperly failed to instruct the jury as to slander per se and that the inclusion on the jury verdict form and interrogatories of the directed verdict as to their claim for intentional infliction of emotional distress prejudiced them and tainted the entire case. Because the plaintiffs did not request a jury instruction on slander per se, did not take exception to the court’s instructions to the jury and did not object to the verdict form and interrogatories, their claims are unpreserved. Accordingly, we decline to review them. See footnote 6 of this opinion.

       The answer also included twelve special defenses: (1) statute of limitations; (2) prior pending action doctrine; (3) abandonment and vacating of premises, abandoned and discarded possessions; (4) the plaintiffs’ lease expired on February 1, 2000; (5) nuisance; (6) fraud; (7) vexatious lawsuit; (8) failure to state a claim; (9) estoppel; (10) collateral estoppel; (11) res judicata; and (12) breach of fiduciary duty.

       The plaintiffs also challenge the jury’s verdict in favor of the Dridis on their counterclaim for intentional infliction of emotional distress. Because the jury did not award the Dridis any damages on that count, however, the plaintiffs are not aggrieved by that judgment and, accordingly, are precluded from challenging it on appeal. See Black v. Goodwin, Loomis & Britton, Inc., 239 Conn. 144, 152 n.12, 681 A.2d 293 (1996).

       The plaintiffs also claim that the court improperly denied their motion in limine to preclude the defendants from asking questions related to the outcome of the federal cases related to these parties. Because the outcome of the federal cases was relevant to the Dridis’ counterclaim for vexatious litigation, the court properly denied the motion in limine but indicated that it would tell the jury “that there was a finding of no probable cause as to a conspiracy with a police officer or police officers and victim’s advocate but that the federal court did not reach . . . the merits of the cases [presently before the court].”

       General Statutes § 52-568 provides: “Any person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others, or asserts a defense to any civil action or complaint commenced and prosecuted by another (1) without probable cause, shall pay such other person double damages, or (2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person, shall pay him treble damages.”

       We note that the court instructed the jury: “A civil action finally terminates in a manner favorable to the defendants in that action when it’s dismissed or goes to judgment for the defendants.” The plaintiffs did not object to or take exception to that instruction.


source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    MARK JANSMA ET AL. v. PATRONS MUTUAL INSURANCE COMPANY OF CONNECTICUT, INC.
    (AC 31705)
    DiPentima, C. J., and Gruendel and Harper, Js.

      Argued December 13, 2010
    officially released March 1, 2011

      Arm Grunbeck Monaghan, for the appellants (plaintiffs).

      Susan L. Miller, with whom, on the brief, was Todd S. Federico, for the appellee (defendant).
   Opinion

GRUENDEL, J.

The plaintiffs, Mark Jansma and Gen-

evieve Jansma, appeal from the summary judgment rendered by the trial court in favor of the defendant, Patrons Mutual Insurance Company of Connecticut, Inc. On appeal, the plaintiffs claim that the court improperly determined that no genuine issues of material fact exist with respect to their underlying complaint against the defendant. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the disposition of the plaintiffs’ appeal. The plaintiffs held a homeowner’s insurance policy (policy) with the defendant that covered the plaintiffs’ residence in Killingworth (residence). The policy limit applicable to the residence was $337,000. On January 13, 2006, the residence was severely damaged as the result of a fire and was declared unlivable by the town of Killingworth. After the fire, the parties agreed to contact Bill Kapura Building Contractors, Inc. (Kapura), to estimate the cost of repairing the residence. In June, 2006, Kapura submitted an estimate to the defendant for $279,594.03. The defendant then issued a check to the plaintiffs for the amount of the Kapura estimate; however, the plaintiffs refused to accept payment, claiming that the Kapura estimate was inadequate and incomplete. On August 22, 2006, the plaintiffs received a second estimate from Total Concept Restoration (Total Concept) for $406,927.50 and demanded that the defendant issue payment for this amount. The defendant disputed Total Concept’s estimate, refused the plaintiffs’ request for payment and, instead, submitted the plaintiffs’ claim to appraisal pursuant to the policy. Thereafter, the defendant paid the plaintiffs the full amount determined by the appraisal process.

On February 7, 2008, the plaintiffs commenced this action, alleging breach of contract, breach of an implied covenant of good faith and fair dealing, negligent infliction of emotional distress, intentional infliction of emotional distress and violations of the Connecticut Unfair Trade Practices Act (CUTPA); General Statutes § 42-110a et seq.; and the Connecticut Unfair Insurance Practices Act (CUIPA). General Statutes § 38a-815 et seq. In support of their claims, the plaintiffs alleged that the defendant engaged in bad faith by prematurely submitting their claim to appraisal, thereby unnecessarily delaying repair of the residence. Subsequently, the defendant filed a motion for summary judgment, claiming that there were no genuine issues of material fact to be litigated and that, pursuant to the express terms of the policy, it was entitled to judgment as a matter of law. On September 23,2009, the court, in a memorandum of decision, granted the defendant’s motion for summary judgment as to all of the plaintiffs’ claims. This appeal followed.

The plaintiffs now claim that the court improperly determined that no genuine issues of material fact exist with respect to the defendant’s allegedly bad faith utilization of the appraisal process. Specifically, the plaintiffs argue that the defendant’s election of the appraisal process was unjustified, as there was no disagreement as to the cost to repair the residence such that the defendant’s right to appraisal would vest under the policy. We are not persuaded.

“As a preliminary matter, we set forth the appropriate standard of review. In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent. . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the non-moving party has no obligation to submit documents establishing the existence of such an issue. . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue. ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]. . . . Our review of the trial court’s decision to grant [a] motion for summary judgment is plenary.” (Internal quotation marks omitted.) Todd v. Nationwide Mutual Ins. Co., 121 Conn. App. 597, 601-602, 999 A.2d 761, cert. denied, 297 Conn. 929, 998 A.2d 1196 (2010).

Here, the record unequivocally supports the court’s ruling granting the defendant’s motion for summary judgment. In support of its motion, the defendant submitted the policy, which explicitly provides that “[i]f [the plaintiffs] and [the defendant] do not agree on the amount of . . . the cost to repair or replace [the residence], either party may demand that [this amount] be determined by appraisal.” It is undisputed that, upon submitting Total Concept’s estimate to the defendant, the plaintiffs were denied payment, as the defendant disputed the amount of the estimate, given its stark contrast to the estimate provided by Kapura. Although the plaintiffs argue that there was no disagreement between the parties as to the cost to repair the residence, the sequence of events in this case clearly demonstrates otherwise. Moreover, given the express terms of the policy, we fail to see how the defendant’s election of the appraisal process constituted bad faith or was otherwise unjustified under the circumstances present here. See Zulick v. Patrons Mutual Ins. Co., 287 Conn. 367, 373, 949 A.2d 1084 (2008) (“If the terms of the policy are clear and unambiguous, then the language, from which the intention of the parties is to be deduced, must be accorded its natural and ordinary meaning. . . . Under those circumstances, the policy is to be given effect according to its terms.” [Internal quotation marks omitted.]). Although the plaintiffs characterize the defendant’s actions in electing appraisal as a bad faith attempt to delay payment of the plaintiffs’ claim, our review of the record, including the policy, reveals that the defendant was fully justified in electing appraisal. Thus, the court properly granted the defendant’s motion for summary judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       The policy provides in relevant pari, that “[i]f [the plaintiffs] and [the defendant] do not agree on the amount of . . . the cost to repair or replace [the residence], either party may demand that [this amount] be determined by appraisal.”


author: PELLEGRINO, J.

text:
    JUAN ARIAS v. JEFFREY GEISINGER
    (AC 31565)
    Bishop, Harper and Pellegrino, Js.

      Argued October 29, 2010
    officially released March 1, 2011

      Proloy K. Das, with whom, on the brief, were Zisca R. St. Clair and Jonathan R. Chappell, for the appellant (defendant).

      Lester Katz, with whom, on the brief, was James A. Armentano, for the appellee (plaintiff).
   Opinion

PELLEGRINO, J.

The defendant, Jeffrey Geisinger, appeals from the judgment of the trial court rendered in favor of the plaintiff, Juan Arias, for injuries resulting from the negligence of the defendant. On appeal, the defendant argues that the court improperly determined that the plaintiffs claims were not barred by General Statutes § 31-293&. We affirm the judgment of the trial court.

Based on the stipulations of the parties, supplemented by testimony and evidence at trial, the court found the following facts. The plaintiff and the defendant were fellow employees at Meridian Operations, LLC (Meridian), a tire recycling company in Plainfield. Early in the morning of June 6, 2005, the plaintiff was seriously injured when the rear passenger side door of a cargo container (container) that was being moved by a vehicle operated by the defendant struck a wooden beam that supported a canopy under which the plaintiff was working, dislodging the wooden beam and causing it to strike the plaintiff.

At the time of the incident, the defendant and the plaintiff were acting within the scope of their employment. The plaintiff was working in the rear of Meridian’s building, where tires were moved on a conveyor belt out of the building and into a loading dock. The tires would be loaded into the container, which was open on top and closed on both sides, with doors on the rear wall. The rear doors could be opened to allow the loading of cargo and closed and secured to prevent the cargo from falling out while in transit. The container was fastened by several bolts to a trailer chassis (chassis), which was essentially a flat bed on four wheels. The container-chassis unit (trailer) was backed into the loading bay, flush with the loading dock, while the rear doors of the container were fully open and folded along its sides to receive the tires. It was the open door on the passenger side of the trailer that struck and dislodged the beam.

The incident occurred during the loading process, while the trailer was being moved away from the loading dock. In order to move the trailer, it was attached to a yard truck, which the defendant drove away from the loading dock with the trailer in tow. While the trailer was being towed, the container struck and dislodged the support beam that inflicted substantial injuries to the plaintiff.

On February 13, 2009, the plaintiff filed his operative amended complaint that alleged that his injuries were caused by the defendant’s negligence. On February 27, 2009, the defendant filed his operative amended answer and a special defense, which asserted that the plaintiff was precluded from recovery for his injuries pursuant to § 31-293a because the defendant, at the time of the incident, was not operating a motor vehicle as defined by General Statutes § 14-1. Prior to trial, the parties stipulated that the defendant was negligent in his movement of the container, that his negligence caused the plaintiffs injuries and that the fair, just and reasonable compensation for his injuries was $1.2 million. On February 26 and 27, 2009, the court heard evidence from Michael Cei, an accident reconstructionist; Guy Mozzi-cato, the president of Meridian at the time of the incident; and the defendant. On September 18, 2009, the court, Hon. Joseph M. Shortall, judge trial referee, issued a memorandum of decision in which he concluded that the plaintiffs injuries were caused by the negligent operation of a motor vehicle and rendered judgment in favor of the plaintiff in the amount of $1.2 million. This appeal followed. Additional facts and procedural history will be set forth as necessary.

On appeal, the defendant argues that the court improperly determined that § 31-293a does not bar the plaintiffs claims. We disagree. Our Workers’ Compensation Act (act), General Statutes § 31-275 et seq., “is the exclusive remedy for injuries sustained by an employee arising out of and in the course of his employment. . . . General Statutes § 31-284 (a). Under the act’s strict liability provisions, workers are compensated without regard to fault. In return for a relatively low burden of proof and expeditious recovery, employees relinquish their right to any common-law tort claim for their injuries. . . . Generally, then, all rights and claims between employers and employees, or their representatives or dependents, arising out of personal injury or death sustained in the course of employment are abolished as a result of the act’s exclusivity bar.

“Another provision of [this state’s] act, [namely] . . . § 31-293a, creates an exception, however, to the otherwise applicable exclusivity bar. In relevant part, § 31-293a provides that [i]f an employee . . . has a right to benefits or compensation ... on account of injury or death from injury caused by the negligence or wrong of a fellow employee, such right shall be the exclusive remedy of such injured employee or dependent and no action may be brought against such fellow employee unless such wrong was wilful or malicious or the action is based on the fellow employee’s negligence in the operation of a motor vehicle. ... As we explained in Colangelo v. Heckelman, 279 Conn. 177, 183-84, 900 A.2d 1266 (2006), if an employee suffers injuries, which otheiwise would be compensable under the act, due to the negligence of a fellow employee, the injured employee is barred from recovery against that fellow employee unless the injuries were caused by the fellow employee’s negligent operation of a motor vehicle [as defined in § 14-1].” Jaiguay v. Vasquez, 287 Conn. 323, 328-29, 948 A.2d 955 (2008).

Thus, our resolution of the defendant’s claim requires us to discern the meaning of § 31-293a, as applied to the factual scenario presented, to determine whether the plaintiff was injured because of the defendant’s negligent operation of a motor vehicle. Such “[i]ssues 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, extratex-tuai evidence of the meaning of the statute shall not be considered. . . . When the language of a statute is not plain and unambiguous, we look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to . . . common law principles governing the same general subject matter.” (Citation omitted; internal quotation marks omitted.) Cruz v. Montanez, 294 Conn. 357, 367-68, 984 A.2d 705 (2009).

We begin, therefore, with the language of § 31-293a to determine whether the court properly determined that the plaintiff fell within the exception to the exclusive remedy of workers’ compensation. Our review of the defendant’s claim hinges on two specific questions: (1) was the accident caused by a motor vehicle and, if so, (2) did the defendant operate that motor vehicle?

Preliminarily, we agree with the court’s finding of fact that the container and the chassis together constitute what we have referred to as the trailer. As the court stated in its memorandum of decision, “[t]he photograph of the [trailer] in evidence shows that the container was identified by a plate carrying the number 1111. That number appears on all of the vehicle registrations from [February] 2005, through [February] 2011, along with the chassis’ [vehicle identification number] number, as the identification of the vehicle being registered. Likewise, it appears on all the department of transportation inspection reports from 2002 through 2006, indicating the vehicle identification along with the [vehicle identification number] of the chassis portion of the [trailer]. The plaintiffs expert testified that the same number, 1111, appeared on the container attached to the chassis on the day he physically inspected the [trailer], January 29, 2009, and photographed the registration certificate affixed to the chassis. . . . Mozzicato, president of Meridian at the time of the incident, referred to the unit throughout his testimony about the incident and Meridian’s vehicle records, and made it clear that he was referring to the unit of the chassis and the container. This evidence satisfies the court that the unit of container and chassis was an essentially permanent unit and not one that happened to have been assembled that day for [the defendant’s] use.” (Internal quotation marks omitted.)

To address whether the trailer in this case constituted a motor vehicle, § 31-293a directs us to § 14-1. Section 14-1 (53) in relevant part defines a “motor vehicle” as “any vehicle propelled or drawn by any nonmuscular power, except aircraft, motor boats, road rollers, baggage trucks used about railroad stations or other mass transit facilities, electric battery-operated wheel chairs when operated by physically handicapped persons at speeds not exceeding fifteen miles per hour, golf carts operated on highways solely for the purpose of crossing from one part of the golf course to another, golf-cart type vehicles operated on roads or highways on the grounds of state institutions by state employees, agricultural tractors, farm implements, such vehicles as run only on rails or tracks, self-propelled snow plows, snow blowers and lawn mowers, when used for the purposes for which they were designed and operated at speeds not exceeding four miles per hour, whether or not the operator rides on or walks behind such equipment, bicycles with helper motors as defined in section 14-286, special mobile equipment as defined in subsection (i) of section 14-165, mini-motorcycles, as defined in section 14-289j, and any other vehicle not suitable for operation on a highway . . . .” Section 14-1 (100) in relevant part defines a “vehicle” to include “any device suitable for the conveyance, drawing or other transportation of persons or property, whether operated on wheels, runners, a cushion of air or by any other means. The term does not include devices propelled or drawn by human power or devices used exclusively on tracks . . . .”

Thus, to conclude that the trailer involved constituted a motor vehicle, a careful path through the plain text of the statute requires us to determine whether the trailer was (1) suitable for transportation of persons or property, (2) propelled or drawn by any nonmuscular power, (3) suitable for operation on a highway and (4) not one of the enumerated vehicles specifically excluded from the definition of a motor vehicle by any of the aforementioned statutes.

First, we conclude that the trailer was a vehicle suitable for transportation of property. The parties stipulated that “[p]iior and subsequent to June 6, 2005, the [t]railer was used many times on a public road or highway to transport property.” Further, at the time of the accident, it was being used to transport scrap tires to an energy plant in Sterling for recycling. We also conclude that the trailer was drawn by nonmuscular power. Although the parties stipulated prior to trial that the yard truck was not a motor vehicle as defined in § 14-1, the yard truck provided “nonmuscular” power to tow the trailer. In fact, as the trial court found, “[the trailer’s] size is such as to require that it be drawn by ‘nonmuscular’ power, i.e., that a piece of equipment, such as a tractor, has to be attached to it in order for it to be drawn or propelled forward.”

Likewise, in concluding that the trailer was suitable for operation on a highway, we adopt the court’s well reasoned analysis in its memorandum of decision: “It is the design of a vehicle that determines whether it is suitable for operation on a highway. Pinheiro v. Board of Education, [30 Conn. App. 263, 272-73, 620 A.2d 159 (1993)]. [Cei] testified without contradiction that the chassis to which the container was attached to make up the [trailer] was designed for operation on a highway in that it had the required equipment for such use. It had tail and brake lights, lights in the center of the chassis to illuminate the rear of the unit, an ICC bar, a protective mechanism to prevent following vehicles from riding under the rear of the chassis, mud flaps to keep dirt and debris from flying onto trailing vehicles, and pneumatic rubber tires for highway use. It had its own suspension and braking systems, the latter activated via hookup to a towing vehicle.

“The parties stipulated that the chassis portion of the unit was inspected annually by the United States Department of Transportation and that it was routinely maintained and repaired. These steps were taken in order to ensure its continued safety for operation over the public highway. Moreover, the parties stipulated that, at the time of the incident, it was properly registered in Maine and had attached to it a Maine license plate, another requirement for it to be suitable for operation on a highway. Finally, the parties stipulated that, prior and subsequent to June 6, 2005 [the date of the incident], the [chassis] was used many times on a public road or highway to transport property.” (Internal quotation marks omitted.)

Last, we must determine whether the trailer qualified as one of the vehicles specifically excluded from the definition of a motor vehicle by General Statutes §§31-293a, 14-1 (53) or 14-165 (9). Because the trailer was operated on wheels and used for the transportation of property, the vehicle comes under the language of § 14-1 (53). In reading subsection (53) of § 14-1, and after concluding that the trailer was drawn by nonmuscular power, we must determine whether the trailer falls under any exception listed in that statute, most specifically, the definition of “special mobile equipment.” Given that § 14-165 (9) defines “special mobile equipment” as a vehicle not designed for the transportation of property on a highway and because we have already determined that the trailer was a vehicle designed for the transportation of property on a highway, we conclude that the trailer does not meet the definition of special mobile equipment. Therefore, based on the clear and unambiguous meaning of §§ 31-293a, 14-1 (53) and 14-165 (9), as applied to the factual scenario presented, we conclude that the court properly determined that the trailer involved in this case constituted a motor vehicle.

We are, thus, left to determine whether the defendant, by driving the yard truck that towed the trailer at the time of the incident, operated a motor vehicle — the trailer. The issue of whether the defendant was engaged in the operation of a motor vehicle at the time of the incident is an issue of law. See Surprenant v. Burlingham, 64 Conn. App. 409, 416, 780 A.2d 219 (2001). In Cirillo v. Sardo, 41 Conn. App. 664, 669-70, 676 A.2d 1388, cert. denied, 239 Conn. 904, 682 A.2d 998 (1996), this court stated that “ [operation of a motor vehicle connotes the control and direction of it, the activity of an operator or driver licensed for that puipose. The exception to § 31-293a relates to injury causally connected to the control and direction of the employer’s vehicle.” (Internal quotation marks omitted.) “In order to find such negligent operation allowing supplementary tort recovery against the employee operator within the exclusion of § 31-293a, the fellow employee’s injury must have been caused by the negligent movement or circumstance resulting from the movement of the employer’s truck.” (Internal quotation marks omitted.) Id., 668.

In its memorandum of decision, the trial court found that the defendant controlled and directed the trailer: “Here, the actions of [the defendant] in towing the [trailer] away from the loading dock constituted the ‘operation’ of the [trailer] because it was he who controlled and directed the movement of the [trailer] by the manner in which he drove the yard truck. He testified that, in order to move the [trailer] away from the loading dock, he had to pull it forward and direct it to the left in order to clear the area. It was during that movement that the [trailer] struck the support beam which, in turn, struck and injured [the plaintiff]. Indeed, [the defendant] admitted that in operating the yard truck he was directing and controlling the movement of the [trailer] and that [the plaintiff] was injured as a result of his moving the unit.”

The defendant relies on Surprenant v. Burlingham, supra, 64 Conn. App. 409, in arguing that the plaintiff has failed to establish operation of a motor vehicle; however, the facts of that case are inapposite to the case at bar. We agree with the trial court’s distinction as set forth in its memorandum of decision: “The defendant [in Surprenant] was operating a front end loader (payloader), while towing a dump truck in an attempt to jump start the truck. The plaintiff was in the cab of the [dump] track, which was attached to the payloader by a metal chain. The chain snapped while the payloader was towing the track, crashed through the windshield of the track and injured the plaintiff. . . . Since the parties agreed that the payloader was not a ‘motor vehicle’ and the dump track was, the question was whether the defendant was ‘operating’ the track while he towed it with the payloader. The Appellate Court concluded that he was not [operating the track] because he was not steering or directing the course of the track; the plaintiff was. ... In [the present] case no one but [the defendant] was directing and controlling the movement of the [trailer] when it struck the beam which injured [the plaintiff].” (Citations omitted.) We, therefore, conclude that the court properly construed § 31-293a, as applied to the facts in this case, and properly determined that the plaintiff was injured due to the defendant’s negligence in the operation of a motor vehicle.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 31-293a provides in relevant part: “If an employee . . . has a right to benefits or compensation under this chapter on account of injury or death from injury caused by the negligence or wrong of a fellow employee, such right shall be the exclusive remedy of such injured employee or dependent and no action may be brought against such fellow employee unless such wrong was wilful or malicious or the action is based on the fellow employee’s negligence in the operation of a motor vehicle as defined in [General Statutes §] 14-1. For purposes of this section, contractors’ mobile equipment such as bulldozers, powershovels, rollers, graders or scrapers, farm machinery, cranes, diggers, forklifts, pumps, generators, air compressors, drills or other similar equipment designed for use principally off public roads are not ‘motor vehicles’ . . .

       The court noted that there was disagreement between the testimony of the plaintiffs expert and Guy Mozzicato, the president of Meridian at the time of the incident, as to whether the bolts fixing the container to the chassis were permanently welded. The court determined that, regardless of whether the container and chassis were permanently attached, they constituted one unit (trailer).

       The court described the yard truck as “a single cab vehicle, considerably smaller than the full-size tractor that would normally be used to tow a [trailer] the size of the [trailer] in question on the highway.” The defendant’s expert witness described the yard truck as a “specialized truck tractor that is used for ‘spotting’ or moving semitrailers or containers in a more efficient manner than a semitractor around a terminal or facility.” The yard truck had its own gasoline engine and acceleration system, as well as a compressor and air hoses, which, when attached to the trailer, activated the brakes on the chassis portion of the trailer.

       The plaintiffs initial complaint was filed on October 18, 2006.

       Although § 14-1 (53) states that the definition of “special mobile equipment” can be found in subsection (i) of General Statutes § 14-165, that definition is actually contained in § 14-165 (9).

       The defendant, through an exhaustive presentation of dictionary definitions and case law on statutory interpretation, argues that the plain and common meaning of the term “motor vehicle” requires that, as a predicate, there be a motor or ability to self-propel. Although such an interpretation would seem logical on its face, the specific statute relevant in this case defines a motor vehicle in relevant part as “any vehicle propelled or drawn by any nonmuscular power . . . .” (Emphasis added.) General Statutes § 14-1 (53).
      In Colangelo v. Heckelman, supra, 279 Conn. 192-93, our Supreme Court has specifically stated that the term “motor vehicle, as that term is defined in § 14-1 [53] and limited under § 31-293a ... is clear and straightforward . . . .” (Internal quotation marks omitted.) In following § l-2z, we simply cannot ignore that the definition of motor vehicle pertinent to this case, as stated in § 14-1 (53), is plain and unambiguous and, thus, that a motor vehicle does not require a motor or ability to self-propel.

       General Statutes § 14-165 (9) in relevant part defines “special mobile equipment” as “a vehicle not designed for the transportation o/persons or property upon a highway and only incidentally operated or moved over a highway, including, but not limited to, ditch-digging apparatus, well-boring apparatus and road construction and maintenance machinery such as asphalt spreaders, bituminous mixers, bucket loaders, street sweepers, tractors other than truck tractors, ditchers, leveling graders, finishing machines, motor graders, road rollers, scarifiers, earth moving carry-alls and scrapers, power shovels and drag lines, and self-propelled cranes and earth moving equipment. The term does not include house trailers, dump trucks, truck-mounted transit mixers, cranes or shovels, or other vehicles designed for the transportation of persons or property to which machinery has been attached . . . .” (Emphasis added.)


author: Per Curiam.

text:
    EDDIE ABERNATHY v. COMMISSIONER OF CORRECTION
    (AC 31207)
    Gruendel, Lavine and Robinson, Js.
    Submitted on briefs December 7, 2010
    officially released January 11, 2011
   Per Curiam.

The appeal is dismissed.


text:
    STATE OF CONNECTICUT v. JOSE MARTINEZ
    (AC 30693)
    Gruendel, Lavine and Robinson, Js.
    Submitted on briefs December 7, 2010
    officially released January 11, 2011
   Per Curiam.

The judgment is affirmed.


text:
    HARTLEY HINES v. COMMISSIONER OF CORRECTION
    (AC 31826)
    DiPentima, C. J., and Bishop and Bear, Js.
    Submitted on briefs December 7, 2010
    officially released January 11, 2011
   Per Curiam.

The judgment is affirmed.


text:
    ALAN BROCKENBERRY v. THOMAS DEEGAN ET AL.
    (AC 31955)
    DiPentima, C. J., and Bishop and Bear, Js.
    Submitted on briefs December 7, 2010
    officially released January 11, 2011
   Per Curiam.

The decision is affirmed.


text:
    ANTONIO BARNES v. COMMISSIONER OF CORRECTION
    (AC 31975)
    Bishop, Bear and Lavery, Js.
    Submitted on briefs January 10
    officially released February 1, 2011
   Per Curiam.

The appeal is dismissed.


text:
    FRANK GULIA, JR., TRUSTEE v. CITY OF BRIDGEPORT ET AL.
    (AC 31869)
    DiPentima, C. J., and Lavine and Flynn, Js.
    Argued January 5
    officially released February 1, 2011
   Per Curiam.

The judgment is affirmed.


text:
    ANTHONY J. PELLECCHIA, ADMINISTRATOR (ESTATE OF ANTHONY E. PELLECCHIA) v. CONNECTICUT LIGHT AND POWER COMPANY ET AL.
    (AC 31588)
    (AC 31800)
    DiPentima, C. J., and Harper and Pellegrino, Js.
    Argued January 4
    officially released February 1, 2011
   Per Curiam.

The judgments are affirmed.


text:
    ERNEST FRANCIS v. THERESA LANTZ ET AL.
    (AC 31404)
    Gruendel, Lavine and Robinson, Js.
    Submitted on briefs December 7, 2010
    officially released February 8, 2011
   Per Curiam.

The judgment is affirmed.


text:
    CHARLIE SANTIAGO v. COMMISSIONER OF CORRECTION
    (AC 31515)
    Harper, Beach and Robinson, Js.
    Argued January 14
    officially released February 8, 2011
   Per Curiam.

The appeal is dismissed.


text:
    ALBERTO NIEVES v. COMMISSIONER OF CORRECTION
    (AC 31246)
    Beach, Robinson and Sullivan, Js.
    Argued January 20
    officially released February 8, 2011
   Per Curiam.

The appeal is dismissed.


text:
    AMERIQUEST MORTGAGE COMPANY v. JEROME L. SIEVERS ET AL.
    (AC 31875)
    Harper, Lavine and Alvord, Js.
    Argued January 6
    officially released February 22, 2011
   Per Curiam.

The judgment is affirmed.


text:
    DONALD NORTHINGTON v. COMMISSIONER OF CORRECTION
    (AC 30872)
    Harper, Beach and Flynn, Js.
    Argued January 10
    officially released February 22, 2011
   Per Curiam.

The appeal is dismissed.


text:
    WALTER W. HINDS, SR. v. COMMISSIONER OF CORRECTION
    (AC 31403)
    Gruendel, Alvord and Flynn, Js.
    Argued February 8
    officially released March 1, 2011
   Per Curiam.

The appeal is dismissed.


text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY v. MARILYN MAFFUCCI MILLER
    (AC 32524)
    Gruendel, Alvord and Pellegrino, Js.
    Argued January 13
    officially released March 1, 2011
   Per Curiam.

The judgment is affirmed.


text:
    JOHN DEFRANCESCO v. FRANKIE’S BARBER SHOP
    (AC 32284)
    Bishop, Harper and Beach, Js.
    Submitted on briefs February 7
    officially released March 1, 2011
   Per Curiam.

The judgment is affirmed.


text:
    KAREN MARINO v. DAVID MARINO
    (AC 31512)
    Harper, Beach and Flynn, Js.
    Submitted on briefs January 10
    officially released March 1, 2011
   Per Curiam.

The defendant has not sustained his burden of providing us a record showing that the trial court abused its discretion in denying his motion for a continuance. The court also did not abuse its discretion in determining the financial orders. The judgment is affirmed.


text:
    TROY MOZELL v. COMMISSIONER OF CORRECTION
    (AC 31520)
    Harper, Bear and Pellegrino, Js.
    Argued February 9
    officially released March 1, 2011
   Per Curiam.

The appeal is dismissed.


text:
    STATE OF CONNECTICUT v. CLAVER LEGG
    (AC 31690)
    Bishop, Alvord and West, Js.
    Argued February 4
    officially released March 1, 2011
   Per Curiam.

The judgment is affirmed.


text:
    ERNEST FRANCIS v. STATE OF CONNECTICUT ET AL.
    (AC 31384)
    Bishop, Alvord and West, Js.
    Submitted on briefs February 4
    officially released March 1, 2011
   Per Curiam.

The judgment is affirmed.