author: WEST, J.

text:
    LEEROY HARRIS v. COMMISSIONER OF CORRECTION
    (AC 32093)
    Gruendel, Beach and West, Js.

      Argued October 11, 2011 —
    officially released March 6, 2012

      Michael Zariphes, special public defender, for the appellant (petitioner).

      SusannE. Gill, supervisory assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Gerard P. Eisemnan, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

WEST, J.

The petitioner, Leeroy Harris, appeals following the habeas court’s denial of his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly rejected his actual innocence and ineffective assistance of counsel claims. We affirm the judgment of the habeas court.

The relevant facts and procedural history related to the underlying conviction were set forth by this court in a decision affirming the petitioner’s conviction; see State v. Harris, 48 Conn. App. 717, 711 A.2d 769, cert. denied, 245 Conn. 922, 717 A.2d 238 (1998); and in the habeas court’s memorandum of decision. “The jury reasonably could have found the following facts. On May 14, 1994, Carl Nicholson left his home on Arctic Street in Bridgeport to buy groceries. He lived there with Stacy Corbett and [her] five children, Erica, Eric, Shawn, Corey and Carla. When he left, he told ten year old Erica, the eldest child, to close the door. As he stepped out onto the porch, Nicholson had a conversation with the [petitioner], whom he knew as a neighbor, telling him that Corbett had left the children alone for two days and that he was going to the grocery store. The [petitioner] told Nicholson that he had some toys in the attic for the children and Nicholson replied that the [petitioner] should save the toys for the morning because the children were going to bed. The [petitioner] asserted that he was going to get the toys for the children.

“Shortly thereafter, the [petitioner] appeared at the door of the Corbett residence and told Erica that her father said to come with him to get some toys. Eric, who recognized the [petitioner], wanted to go along, but the [petitioner] said, ‘[o]nly Erica.’ Erica left with the [petitioner], who beat and choked her, carried her through an alleyway, threw her over a fence into her backyard, where he stabbed her in the face and neck, piercing her jugular vein and causing her death. The [petitioner] then went to the one of the victim’s neighbors and told them there was a body in the backyard.” Id., 718-19.

The petitioner was charged with murder in violation of General Statutes § 53a-54a. Subsequently, the petitioner was convicted following a jury trial and was sentenced to sixty years imprisonment. This court affirmed the petitioner’s conviction on direct appeal. Id., 731.

The petitioner filed an amended four count petition for a writ of habeas corpus on September 21, 2009. Following a habeas trial, the court denied the petition for a writ of habeas, corpus. The court granted the petitioner’s petition for certification to appeal. On appeal, the petitioner asserts that the court improperly rejected his actual innocence claim and abused its discretion by drawing an adverse inference regarding the petitioner’s failure to undergo a DNA test, without first providing notice of such an inference. Additionally, the petitioner alleges that the court improperly rejected his claim of ineffective assistance of counsel regarding his trial counsel’s failure to present an expert witness to evaluate the reliability of a child witness’ testimony. This appeal followed. Additional facts will be set forth as necessary.

I

We first address the petitioner’s claim that the court improperly rejected his actual innocence claim. In count one of his amended petition for a writ of habeas corpus, the petitioner alleges actual innocence due to new DNA tests conducted on his shoes that excluded the victim’s blood as a source contributer to the stains found on the petitioner’s shoes. The petitioner alleges that because the shoes were the only physical evidence linking him to the crime, the new test results undermine the state’s entire case. At the habeas trial, a forensic expert testified that those stains on the petitioner’s shoe which had been admitted at his criminal trial as evidence of the victim’s blood when retested in 2009 provided only a weak positive result for blood and eliminated the victim as a possible contributor. The forensic examiner was then asked on cross-examination whether she had conducted any other DNA testing from any other evidence from the murder. The forensic examiner testified that she had also tested fingernail scrapings from the victim which were able to generate partial DNA profiles, but the request for a comparison DNA sample from the petitioner was never provided. Therefore, the fingernail scraping tests did not conclusively exculpate or inculpate the petitioner.

In a memorandum of decision, the court rejected the petitioner’s actual innocence claim. The court was not persuaded by the petitioner’s argument that without the blood evidence on the petitioner’s shoes, the jury would have acquitted the petitioner. The court found that such an argument “overlooks the fact that [the petitioner] was identified as the person who was last seen with the victim and inexplicably reported her body in the backyard. [The petitioner] also related a confrontation he allegedly invented wherein a white male and a black female fought and the male threw the female over the fence. . . . His behavior at the crime scene, his knowledge that the victim was stabbed, and his leaving the scene to change his clothes represent further circumstantial evidence . . . .” In the last section of the memorandum of decision, the court drew an adverse inference from the petitioner’s failure to provide a DNA sample to compare with the DNA tested from the victim’s fingernail scrapings, inferring that any further DNA testing would not have been exculpatory.

The petitioner now claims that the court erred in denying his petition for a writ of habeas corpus on the basis of actual innocence. Within his claim of actual innocence, the petitioner makes subordinate claims that the court (1) improperly overruled his scope and relevancy objections with regard to DNA testing of fingernail scrapings and (2) abused its discretion and violated the petitioner’s constitutional rights by drawing an adverse inference from his failure to provide a DNA sample. We disagree.

A

We begin by reviewing the court’s rejection of the petitioner’s claim of actual innocence. “[T]he proper standard for evaluating a freestanding claim of actual innocence ... is twofold. First, the petitioner must establish by clear and convincing evidence that, taking into account all of the evidence — both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial — he is actually innocent of the crime of which he stands convicted. Second, the petitioner must also establish that, after considering all of that evidence and the inferences drawn therefrom as the habeas court did, no reasonable fact finder would find the petitioner guilty of the crime.” Miller v. Commissioner of Correction, 242 Conn. 745, 747, 700 A.2d 1108 (1997). As to the clear and convincing evidence component, “[t]he clear and convincing standard of proof is substantially greater than the usual civil standard of a preponderance of the evidence, but less than the highest legal standard of proof beyond a reasonable doubt. It is sustained if the evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist. . . . We have stated that the clear and convincing standard should operate as a weighty caution upon the minds of all judges, and it forbids relief whenever the evidence is loose, equivocal or contradictory.” (Internal quotation marks omitted.) In re Dylan C., 126 Conn. App. 71, 87, 10 A.3d 100 (2011).

Our Supreme Court recently clarified the actual innocence standard in Gould v. Commissioner of Correction, 301 Conn. 544, 22 A.3d 1196 (2011). In Gould, the habeas court found that the petitioner was entitled to relief on his actual innocence claim after the “recantations of testimony that was the sole evidence of [the petitioner’s] guilt.” Id., 546. On appeal, our Supreme Court held that the clear and convincing burden under Miller requires more than casting doubt on evidence presented at trial and the burden requires the petitioner to demonstrate actual innocence through affirmative evidence that the petitioner did not commit the crime. Id., 562. “Recantations of inculpatory criminal trial testimony undoubtedly are relevant to a determination of actual innocence. But evidence of that nature must be accompanied by affirmative evidence of innocence to meet Miller’s standard of clear and convincing evidence of actual innocence.” (Emphasis in original.) Id., 564.

Under the second prong, the petitioner must establish that “no reasonable fact finder, considering all of the evidence in the same way that the habeas court considered it, and drawing the same inferences that the habeas court drew, would find the petitioner guilty of the crime of which he stands convicted.” Miller v. Commissioner of Correction, supra, 242 Conn. 800.

The standard of review for actual innocence is twofold. “With respect to the first component of the petitioner’s burden, namely, the factual finding of actual innocence by clear and convincing evidence . . . [t]he appropriate scope of review is whether, after an independent and scrupulous examination of the entire record, we are convinced that the finding of the habeas court that the petitioner is actually innocent is supported by substantial evidence. This is the same scope of review that we apply to the ultimate finding by a trial court regarding whether a confession in a criminal case is voluntary. . . . The weight of the interests at stake in the factual determination by the habeas court in the present case compels the same heightened level of scrutiny.” (Citation omitted.) Id., 803. As to the second component of the petitioner’s burden, “that no reasonable fact finder would find the petitioner guilty . . . our scope of review is plenary. A habeas court is no better equipped than we are to make the probabilistic determination of whether, considering the evidence as the habeas court did, no reasonable fact finder would find the petitioner guilty. That type of determination does not depend on assessments of credibility of witnesses or of the inferences that are the most appropriate to be drawn from a body of evidence — assessments that are quintessentially [the] task for the [fact finder] in a habeas proceeding. . . . Determining whether no reasonable fact finder, considering the entire body of evidence as the habeas court did, would find the petitioner guilty is either an application of law to the facts or a mixed question of law and fact to which a plenary standard of review applies.” (Citation omitted.) Id., 805.

The petitioner argues that the newly retested shoes were the only physical evidence that connected him with the crime and that the rest of the state’s evidence was circumstantial. The petitioner asserts that without any physical evidence, the state’s weak circumstantial case has been shattered and thus the court erred in rejecting his actual innocence claim. The petitioner then attempts to refute all of the circumstantial evidence that the state used to convict him.

The petitioner has demonstrated that his shoes, when retested, did not contain blood from the victim, and he attempts to use this discounted physical evidence to refute the rest of the circumstantial evidence relied on by the jury to convict him. The petitioner has not presented any affirmative proof of actual innocence, and there was considerable circumstantial evidence that the petitioner committed the crime. Based on our own review, we conclude that the court properly found that the petitioner had not established by clear and convincing evidence that he is innocent of the murder for which he was convicted, nor had he established that no reasonable fact finder would find him guilty of the crime.

B

Next, the petitioner argues that the court abused its discretion when it overruled his objections regarding additional DNA testing done by the state forensic science laboratory (laboratory) on the fingernail scrapings. During the cross-examination of the forensic examiner the respondent, the commissioner of correction, asked the examiner if the laboratory conducted DNA testing on evidence other than the petitioner’s shoes. The petitioner objected to questions regarding further DNA testing of the fingernail scrapings as irrelevant and beyond the scope of the petitioner’s petition. The court admitted the testimony finding that it was relevant to the issue of actual innocence.

We begin our legal analysis by noting that “[Relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice . . . .” Conn. Code Evid. § 4-3. “Because of the difficulties inherent in this balancing process, the trial court’s decision will be reversed only whe[n] abuse of discretion is manifest or whe[n] an injustice appears to have been done. . . . On review by this court, therefore, every reasonable presumption should be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) State v. Collins, 299 Conn. 567, 582, 10 A.3d 1005, cert. denied,

U.S. , 132 S. Ct. 314, 181 L. Ed. 2d 193 (2011).

For a claim of actual innocence, any possible exculpatory evidence is relevant, even if it is not conclusive. Additionally, the testimony in question is relevant because the petitioner is seeking relief for actual innocence but did not submit a DNA sample for comparison with the fingernail scrapings. This failure to submit to a possible exculpatory test when claiming actual innocence is relevant testimony. For those reasons, we conclude that the court did not abuse its discretion by allowing testimony regarding further DNA testing that was conducted by the laboratory.

C

Additionally, the petitioner argues that the court abused its discretion and violated his constitutional rights by drawing an adverse inference, without prior notice, from the petitioner’s failure to supply a DNA sample to the laboratory following its request.

The court based its decision rejecting the petitioner’s actual innocence claim on the weight of the other evidence that was presented during the petitioner’s criminal trial in the first section of its memorandum of decision. It is not until the last paragraph of the last section of the memorandum of decision that the court addresses the “additional issue” of the “ ‘fallout’ ” from the retesting of DNA evidence. It is in this final section that the court makes its adverse inference from the petitioner’s failure to supply a DNA sample. The court concluded that the petitioner’s failure to give a DNA sample “would appear to negate by itself any actual innocence claim.” After reviewing the memorandum of decision as a whole, we interpret this “additional issue,” and the adverse inference that the court drew, to be a separate and independent ground that followed a thorough analysis on which the court had already rejected the petitioner’s actual innocence claim. Because we interpret the adverse inference to be a separate ground on which the court denied the petition, we need not reach the merits of the petitioner’s argument that the adverse inference and lack of notice violates his constitutional rights. See, e.g., State v. Mark R., 300 Conn. 590, 598, 17 A.3d 1 (2011) (“It is well established that [w]here the trial court reaches a correct decision but on [alternate] grounds, this court has repeatedly sustained the trial court’s action if proper grounds exist to support it. . . . [W]e . . . may affirm the court’s judgment on a dispositive alternate ground for which there is support in the trial court record.” [Internal quotation marks omitted.]).

II

Next, we address the petitioner’s claim that the court improperly rejected his claim of ineffective assistance of counsel. Specifically, the petitioner argues that his counsel’s failure to call an expert witness following the in-court identification of the petitioner by the victim’s brother constituted deficient performance and prejudiced the outcome of the petitioner’s criminal trial.

The following additional facts are necessary to resolve the petitioner’s claim. The victim’s brother, Eric, was seven years old at the time of the victim’s murder and eight years old at the time of trial. During his testimony at the probable cause hearing, the petitioner’s attorney, David Abbamonte, took exception to the court’s determination that Eric was a competent witness. At the probable cause hearing, Eric did not make a definitive identification of the petitioner. At the petitioner’s criminal trial, the petitioner’s counsel, William Holden, objected to the court’s determination that Eric was competent to testify as a witness. During his testimony at trial, Eric identified the petitioner as the man who walked away with the victim on the night of her murder.

Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. “In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . . The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” (Citation omitted; internal quotation marks omitted.) Henderson v. Commissioner of Correction, 80 Conn. App. 499, 503, 835 A.2d 1036 (2003), cert. denied, 267 Conn. 918, 841 A.2d 1190 (2004).

“In Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel’s assistance was so defective as to require reversal of [the] conviction. . . . That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.” (Internal quotation marks omitted.) Nieves v. Commissioner of Correction, 92 Conn. App. 534, 536, 885 A.2d 1268 (2005), cert. denied, 277 Conn. 903, 891 A.2d 2 (2006).

“The first part of the Strickland analysis requires the petitioner to establish that . . . counsel's representation fell below an objective standard of reasonableness considering all of the circumstances. ... [A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance . . . .” (Internal quotation marks omitted.) Bova v. Commissioner of Correction, 95 Conn. App. 129, 135, 894 A.2d 1067, cert. denied, 278 Conn. 920, 901 A.2d 43 (2006). “Turning to the prejudice component of the Strickland test, [i]t is not enough for the [petitioner] to show that the errors [made by counsel] had some conceivable effect on the outcome of the proceeding. . . . Rather, [the petitioner] must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” (Internal quotation marks omitted.) Id.

“In Strickland, the United States Supreme Court held that [j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a [petitioner] to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . . [Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Internal quotation marks omitted.) Santiago v. Commissioner of Correction, 90 Conn. App. 420, 425, 876 A.2d 1277, cert. denied, 275 Conn. 930, 883 A.2d 1246 (2005), cert. denied sub nom. Santiago v. Lantz, 547 U.S. 1007, 126 S. Ct. 1472, 164 L. Ed. 2d 254 (2006).

In the present case, the petitioner claims that Holden’s failure to call an expert witness following Eric’s testimony constituted deficient performance and prejudiced the petitioner. Specifically, the petitioner claims that if Holden had hired or consulted with an expert witness in child competence, Holden would have more effectively cross-examined Eric at trial, and the testimony of an expert witness would have alerted the jury to the problems of unreliability of child testimony. “[T]he failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense.” (Internal quotation marks omitted.) Eastwood v. Commissioner of Correction, 114 Conn. App. 471, 481, 969 A.2d 860, cert. denied, 292 Conn. 918, 973 A.2d 1275 (2009); see also Nieves v. Commissioner of Correction, 51 Conn. App. 615, 622-24, 724 A.2d 508, cert. denied, 248 Conn. 905, 731 A.2d 309 (1999) (holding that petitioner’s failure to present evidence showing what witnesses who were not called by petitioner would have said if called to testify was fatal to his claim).

The petitioner is merely speculating that an expert witness could have discounted the credibility of Eric’s in-court identification. On two occasions, the court found Eric competent to testify, both at the probable cause hearing and at the criminal trial. The court found that Holden provided “a spirited defense . . . addressing the competency of a child witness . . . .” The petitioner did not present any evidence that Holden’s consultation with, or testimony of, an expert witness would have weakened Eric’s testimony. “The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner.” Holley v. Commissioner of Correction, 62 Conn. App. 170, 175, 774 A.2d 148 (2001). Additionally, the petitioner did not present any evidence that a prudent attorney would have brought in an expert to impeach the testimony of a child witness. Therefore, the petitioner cannot succeed on either the performance or prejudice prong of the Strickland test.

The judgment is affirmed.

In this opinion the other judges concurred.

       The petitioner objected to the question as irrelevant, but the court overruled the objection.


source: Caselaw Access Project

author: BEACH, J.

license: Public Domain

text:
    WILLAMETTE MANAGEMENT ASSOCIATES, INC. v. KIMBERLY PALCZYNSKI
    (AC 31641)
    Beach, Alvord and Dupont, Js.

      Argued November 8, 2011 —
    officially released March 6, 2012

      Kenneth A. Votre, for the appellant (defendant).

      Laura Pascóle Zaino, with whom, on the brief, were Susan M. Kirkeby and Thomas P. O’Dea, for the appel-lee (plaintiff).
   Opinion

BEACH, J.

The defendant, Kimberly Palczynski, appeals from the judgment of the trial court rendered in favor of the plaintiff, Willamette Management Associates, Inc., in the amount of $117,739.04 following a hearing in damages. On appeal, the defendant claims that the court erred by (1) not allowing the defendant to replead her answer and special defense after granting the plaintiff leave to correct a defective return date on the writ of summons and complaint and (2) declining to enforce a subsequent agreement between the parties. We affirm the judgment of the trial court.

The court found the following facts in its memorandum of decision. “In this case, the plaintiff . . . sues the defendant . . . for breach of contract, and the proceeding before the court is a hearing in damages. The plaintiff is an accounting firm which engaged in business evaluations. It entered into a written contract with the defendant, dated January 27, 2005, by which the plaintiff agreed to perform extensive services for the defendant involving her husband’s business interest in a certain corporation, in connection with a pending marital case between the couple. The work . . . included assisting the defendant’s attorney during the discovery process to obtain necessary information to value such interest, preparing a valuation report and testifying at depositions and at the trial. Billing procedures were outlined in detail, the defendant paid the plaintiff $6000 as a retainer on the agreement, and she was billed twice monthly. The contract also required the defendant to pay any outstanding fees to the plaintiff before its principal, Alan Schachter, would be asked to provide expert testimony at trial.

“Shortly before the marital trial, the outstanding balance of the plaintiffs bills was $72,000, less the $5000 paid, for a total of $67,000. The plaintiff was informed by the defendant’s attorney that the defendant did not have the ability to pay the bill. As a result, Schachter wrote to the [defendant] on July 20, 2007, exhorting her to make some type of arrangement with the plaintiff, since he believed his expert testimony would be important to the outcome of her case. He wrote, ‘as a courtesy to you and [your lawyer] I have advised [your lawyer] that in lieu of immediate payment, my firm would be willing to accept a mortgage on your real property, a confession of judgment, or any other collateral held in escrow to secure your obligation to us.’ What followed was a written agreement between the parties dated July 31, 2007 . . . calling for the plaintiff to continue to perform the same work, including trial preparation and testimony at trial, as was required by the plaintiff by the original retainer agreement. What changed was a reduction of the sum to be paid by the defendant to the plaintiff for all work done or to be done, from $67,000 to a total of $57,000, and a new payment schedule. The schedule called for monthly payments ranging from $1000 per month to $2000 per month from January 1, 2008, to June 1, 2009, and the balance monthly from July 1, 2009, at $2600 per month thereafter, until the balance of the settlement amount was paid in full. The defendant never made any payments required by the [settlement [agreement.”

The plaintiff served a one count complaint on May 28, 2008, alleging that the defendant breached agreements dated January 27, 2005 (first agreement), and July 31, 2007 (second agreement), by failing to make payments pursuant to either agreement. On June 18, 2008, the court granted the plaintiffs motion for default against the defendant for failure to appear. The defendant thereafter appeared through counsel. On July 24, 2008, the court granted the plaintiffs motion for default against the defendant for failure to plead to the complaint. On October 20, 2008, the defendant filed an answer, two special defenses and a three count counterclaim alleging that the plaintiff failed to conform its work to the relevant standard of care. The defendant also moved to strike the action from the hearing in damages list and moved to open the default for failure to plead. Noting that there was no objection, on February 9,2009, the clerk of the court granted the defendant’s motion to open the default for failure to plead. Notice of the court’s action, however, was not issued until February 23, 2009, and, in the interim, the plaintiff filed an objection to the motion on February 18, 2009. The court subsequently sustained the plaintiffs objection to the motion on March 19,2009, and vacated the clerk’s action granting the motion to open the default.

Thereafter, at a scheduled hearing in damages on April 29, 2009, a defective return date on the writ of summons — apparently the result of a scrivener’s error — was discovered. The court granted the plaintiffs motion to amend the writ of summons and complaint to correct the error; thereafter an amended complaint was filed. The defendant then filed an answer and a special defense on June 5, 2009. A hearing in damages was held, at which the court declined to recognize as effective the defendant’s answer to the amended complaint because she had been defaulted and because no substantive change had been made to the complaint. The court then issued a memorandum of decision concluding that the first agreement was controlling, and, accordingly, rendered judgment in favor of the plaintiff in the amount of $117,739.04. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first argues that the court erred by declining to give effect to her answer and special defense filed after the filing of the amended complaint, which corrected the scrivener’s error in the return date. We disagree.

The following additional facts are relevant to our discussion. The original complaint dated May 15, 2008, specified a return date of June 10, 2008. The writ of summons reflected a return date of June 10, 2007. The 2007 date obviously was erroneous. Apparently the error was not discovered until the April 29,2009 hearing, when the court read aloud the return date and the plaintiffs counsel stated that the return date in the writ of summons was a scrivener’s error. The defendant’s counsel subsequently claimed that the court lacked subject matter jurisdiction as a result of the error. The plaintiffs counsel argued that a defective return date, at most, affected personal jurisdiction, and thus the defense had been waived because it had not been raised within thirty days after the defendant’s appearance pursuant to Practice Book §§ 10-30 and 10-32. The court ruled that subject matter jurisdiction was not implicated and that the issue was governed by General Statutes § 52-72, and thus it was a defect that was curable by amendment. At the court’s direction, the plaintiff subsequently amended the writ of summons to reflect a return date of June 3, 2008, and served an amended complaint dated May 5, 2008, with a return date of June 3, 2008. On June 6, 2009, the defendant filed an answer and a special defense. At the rescheduled hearing in damages on August 4, 2009, the defendant moved to strike the case from the hearing in damages list on the ground that the plaintiff had not filed a reply to the special defense and that the pleadings were, therefore, still open. The court rejected the defendant’s argument, finding that there had been a default for failure to appear and for failure to plead. The court did not accept the repleading as effective, noting that “[n]othing changed in the substantive pleadings and [the defendant has] been defaulted.”

We begin with the applicable standard of review. “Whether to grant a request to amend the pleadings is a matter within the discretion of the trial court, and this court will rarely overturn the decision of the trial court. . . . Judicial discretion ... is always legal discretion, exercised according to the recognized principles of equity. . . . While its exercise will not ordinarily be interfered with on appeal to this court, reversal is required where the abuse is manifest or where injustice appears to have been done. . . .

“Under the statutes and rules of practice, the court may in its discretion, in a proper case, allow the filing of amendments to pleadings before, during and after trial. . . . Amendments should be made seasonably. Factors to be considered in passing on a motion to amend are the length of delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment. . . . The essential tests are whether the ruling of the court will work an injustice to either [party] and whether the granting of the motion will unduly delay atrial.” (Citations omitted; internal quotation marks omitted.) Kelley v. Tomas, 66 Conn. App. 146, 174-75, 783 A.2d 1226 (2001). “It is the . . . burden [of the party that requested the amendment] to demonstrate that the trial court clearly abused its discretion.” (Internal quotation marks omitted.) Canterbury v. Deojay, 114 Conn. App. 695, 705, 971 A.2d 70 (2009).

The defendant argues that because the court granted the plaintiff leave to amend the writ of summons and complaint to correct the return date, she should have been allowed to plead to the amended complaint. The plaintiff asserts that the amendment responded to and corrected a procedural technicality only — a scrivener’s error. Although the plaintiff followed the court’s order and filed an amendment, it has maintained that, under the circumstances, no amendment was necessarily required. Relying on Merrill v. NRT New England, Inc., 126 Conn. App. 314, 12 A.3d 575, cert. granted on other grounds, 300 Conn. 925, 15 A.3d 629 (2011), the plaintiff further asserts that the defective return date implicated only personal jurisdiction.

Our Supreme Court has stated that a defect in process implicates personal jurisdiction. See Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 31-33, 848 A.2d 418 (2004) (holding that noncompliance with General Statutes § 52-102b, which requires service of apportionment complaint within 120 days after return date of original complaint, implicated personal jurisdiction); see also Bohonnon Law Firm, LLC v. Baxter, 131 Conn. App. 371, 377-78 and n.9, 27 A.3d 384 (concluding that defendant’s claim of defective process based on failure to establish return date and failure of service and return within statutory time frames implicated personal jurisdiction), cert. denied, 303 Conn. 902, 31 A.3d 1177 (2011). A defective return date is a curable defect. See General Statutes § 52-72 (a) (“[a]ny court shall allow a proper amendment to civil process which has been made returnable to the wrong return day or is for any other reason defective, upon payment of costs taxable upon sustaining a plea in abatement”); Coppola v. Coppola, 243 Conn. 657, 663, 707 A.2d 281 (1998) (“the pmpose of § 52-72 is to provide for amendment of otherwise incurable defects that go to the court’s jurisdiction” [internal quotation marks omitted]).

In the present case, the scrivener’s error appeared on the writ of summons. Pursuant to § 52-72, the court properly allowed the plaintiff to amend its process to reflect a correct return date. See Coppola v. Coppola, supra, 243 Conn. 664-66; Concept Associates, Ltd. v. Board of Tax Review, 229 Conn. 618, 625-26, 642 A.2d 1186 (1994) (holding that plaintiff could amend its process to correct return date even though return date already passed). The defect in process was curable, and therefore it was a matter of personal jurisdiction only.

The defendant urges us to conclude that because the complaint was amended to correct the return date, the default was in effect opened and she should have been allowed to plead to the newly filed amended complaint. She relies on our Supreme Court’s holding in Coppola v. Coppola, supra, 243 Conn. 657, for support. In that case, the court held that § 52-72 permits amendment of the return date of civil process to correct a party’s failure to return the process at least six days before the return date. Id., 658-59. The defendant asserts that it follows from the Coppola court’s discussion regarding the remedial nature of the statute that in the present case, “[i]t is inequitable to allow the plaintiff to correct an error that deprived the court of jurisdiction, but not to allow the defendant to plead.” She relies also on Practice Book § 10-61 for her position that her responsive pleading, if found proper, was timely. We do not agree.

In Coppola, the court addressed whether it was proper for a trial court to allow an amendment to process when the plaintiff did not return the process six days prior to the return day as required by statute. In that case, the writ of summons and complaint had been returned to court on the return date, instead of at least six days before the return date, as required by General Statutes § 52-46a. Coppola v. Coppola, supra, 243 Conn. 660. After the defendant moved to dismiss, the plaintiff attempted to amend the return date from August 15 to August 22, in order to retrofit the dates. Id. The trial court denied the plaintiffs motion to amend and dismissed the case, and this court affirmed the judgment. Id., 660-61.

The Supreme Court reversed our judgment. It held that pursuant to § 52-72, the trial court should have allowed the amended pleading, so that the case would be allowed to proceed. Id., 659. It noted that § 52-72 was a remedial statute allowing for the correction of procedural defects and that dismissal where no prejudice had occurred and where there was no impediment to the progress of the case would be draconian. Id., 664-65. The court concluded that the defendant could respond to the complaint and the case could proceed. Id., 666.

In Coppola, the defendant discovered the defect immediately and had not pleaded responsively at the time the case was dismissed; id., 660; thus, amendment of the return date would not have prejudiced the defendant’s ability to plead responsively. In the present case, the defendant never discovered the defect in the writ of summons and was certainly not prejudiced by the defect. From all appearances, the defect in the writ of summons had nothing at all to do with her subsequent defaults, and there is, therefore, no equitable reason why a technical amendment to the writ of summons should create the opportunity to plead responsively. The only change between the original complaint and the amended complaint was the return date and the date of the complaint. All substantive allegations in the complaint remained precisely the same. The court did not vacate its entry of default against the defendant, and the purpose of amending the complaint was solely to remedy a typographical error. The defendant’s substantive rights were not affected by the amendment, and she has not demonstrated prejudice. “If the effect of an amendment of a complaint so made is to substantially change the cause of action originally stated, the defendant is entitled to file new or amended pleadings and present further evidence. Also, if the amendment interjects material new issues, the adversary is entitled to reasonable opportunity to meet them by pleading and proof.” Mazulis v. Zeldner, 116 Conn. 314, 317, 164 A. 713 (1933). No change of any kind, and thus certainly not a substantial change, was made to the cause of action in the present case. See Richards v. Trudeau, 54 Conn. App. 859, 863, 738 A.2d 215 (1999) (holding that court did not abuse its discretion in refusing to give effect to defendants’ answer when filed almost one year after default entered against them). The court properly exercised its discretion by prohibiting the defendant from filing a pleading to the amended complaint when the amendment served merely to correct an erroneous return date.

II

The defendant next argues that the court erred by concluding that the first agreement of January 27, 2005, rather than the second agreement of July 31, 2007, controlled. Specifically, she asserts that the second agreement is a novation and is the only enforceable agreement between the parties, as dictated by the complete integration clause stating that the agreement superseded any prior writings.

The following additional facts are relevant to this claim. At the August 4, 2009 hearing in damages, the court heard argument on the issue of whether the first or second agreement was controlling. The plaintiff argued that because the defendant was in breach, she should not be allowed to enforce the second agreement that included a reduced payment amount. The plaintiff requested the court’s permission to submit a trial brief providing case law in support of its position. The court granted the plaintiffs request. The defendant argued that the plain language of the second agreement dictated that it was the controlling agreement and that ended the inquiry. In its posttrial brief, the plaintiff argued that the defendant’s breach precluded her from enforcing the second agreement and that that agreement lacked consideration. The defendant argued that there was consideration for the second agreement on the basis of a mutual exchange of promises.

The court found that the second agreement “was not supported by adequate consideration and is not enforceable against the plaintiff.” The court reasoned that under the second agreement, the plaintiff did not receive any benefits and “was still required to perform the same work required to be done under the [first] agreement . . . .” The court further found that even if consideration was present, the second agreement would still be unenforceable by the defendant because she had breached that agreement.

“[Consideration is [t]hat which is bargained-for by the promisor and given in exchange for the promise by the promisee .... Consideration consists of a benefit to the party promising, or a loss or detriment to the party to whom the promise is made.” (Internal quotation marks omitted.) General Electric Capital Corp. v. Transport Logistics Corp., 94 Conn. App. 541, 546-47, 893 A.2d 467 (2006). “Whether an agreement is supported by consideration is a factual inquiry reserved for the trier of fact and subject to review under the clearly erroneous standard.” (Internal quotation marks omitted.) Viera v. Cohen, 283 Conn. 412, 442, 927 A.2d 843 (2007). The conclusion drawn from the facts so found, i.e., whether a particular set of facts constitutes consideration in the particular circumstances, is a question of law; see Town Bank & Trust Co. v. Benson, 176 Conn. 304, 307-308, 407 A.2d 971 (1978); and, accordingly, is subject to plenary review. See Santoro v. Santoro, 132 Conn. App. 41, 47, 31 A.3d 62 (2011).

In support of her position that the second agreement is controlling, the defendant argues that that document is a novation. “Novation may be broadly defined as a substitution of a new contract or obligation for an old one which is thereby extinguished.” (Internal quotation marks omitted.) Bushnell Plaza Development Corp. v. Fazzano, 38 Conn. Sup. 683, 688, 460 A.2d 1311 (1983). “Novation” and “substitute contract” often are used interchangeably to refer to a subsequent contract. See 2 Restatement (Second), Contracts § 280, reporter’s note (1981) (noting that “[c]ourts sometimes use ‘novation’ in situations in which this Restatement would use ‘substituted contract’ [§ 279] or ‘modification’ [§ 89]); 29 S. Williston, Contracts (4th Ed. Lord 2003) § 73:36, p. 115 (noting that accord and satisfaction, substituted contract and novation are often confused by courts where question is whether agreement is intended to result in satisfaction). Our Supreme Court has stated that a novation “is usually used with reference to instances in which a new party is introduced into the new contract, while ‘substitute contract’ is the designation commonly employed to cover agreements between the same parties which supersede and discharge prior contract obligations.” Riverside Coal Co. v. American Coal Co., 107 Conn. 40, 44-45, 139 A. 276 (1927); see also 2 Restatement (Second), supra, § 279 (defining substituted contract as “contract that is itself accepted by the obligee in satisfaction of the obligor’s existing duty”); 2 Restatement (Second), supra, § 280 (defining novation as type of substituted contract “that includes as a party one who was neither the obligor nor the obligee of the original duty”).

Although the defendant argues that the second agreement is a novation, or more accurately, a substitute contract, and that its language requires it to be the controlling contract, it is first necessary to determine whether that agreement meets the legal definition of a contract. Professor Williston’s treatise on contracts defines contract as “a promise or set of promises for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty. The heart of contract is thus found both in its promissory nature and in its enforceability.” (Internal quotation marks omitted.) 1 S. Williston, Contracts (4th Ed. Lord 2007) § 1:1. Accordingly, to constitute a substitute contract, an agreement must be supported by consideration. Vachon v. Tomascak, 155 Conn. 52, 56, 230 A.2d 5 (1967); see also 2 Restatement (Second), supra, § 279, comment (b) (substituted contract not effective unless “supported by consideration or some substitute for consideration”). “[T]he doctrine of consideration is fundamental in the law of contracts, the general rule being that in the absence of consideration an executory promise is unenforceable.” Harley v. Indian Spring Land Co., 123 Conn. App. 800, 825, 3 A.3d 992 (2010). In order for there to be valid consideration, “a party . . . [must] do, or promise to do, something further than, or different from, that which he is already bound to do.” Thermoglaze, Inc. v. Morningside Gardens Co., 23 Conn. App. 741, 745, 583 A.2d 1331, cert. denied, 217 Conn. 811, 587 A.2d 153 (1991); see also 29 S. Williston, supra, § 73:17 (“if the undertaking by one party is simply to perform the whole or part of what it promised in the original contract, this will not support a promise by the other party to perform what it had previously agreed to do and something more; or, to put the same matter in other words, an existing contract cannot be altered by mutual assent by an agreement merely to give one party a right or privilege, or subject the other party to a burden that it did not previously have”).

In the present case, the court found that the second agreement failed for lack of consideration because it “conferred no benefits on the plaintiff, which was still required to perform the same work required to be done under the [first] agreement, and did not eliminate or reduce any risk of collection, which remained the same as before.” At the time of the making of the second agreement, the first agreement was still in effect. Notwithstanding the integration clause in the second agreement that expressly superseded all prior writings between the parties, at the time that the parties entered into the second agreement, the defendant was legally obligated pursuant to the first agreement to pay the plaintiff the full amount for services rendered. The second agreement purported to reduce the amount owed by the defendant but did not alter the obligations of the plaintiff. “Generally, a promise to do something which the promisor is already legally obligated to do does not constitute consideration sufficient to support a valid contract.” (Internal quotation marks omitted.) Jackson v. Water Pollution Control Authority, 278 Conn. 692, 707 n.13, 900 A.2d 498 (2006); see Gianetti v. Norwalk Hospital, 211 Conn. 51, 61, 557 A.2d 1249 (1989); see also Marcus v. DuPerry, 223 Conn. 484, 489, 611 A.2d 859 (1992) (concluding that second contract, if in fact made, would not be void for lack of consideration, where client had discharged attorney two months before second contract purportedly made, and thus at time of making of second contract attorney had no existing contractual obligation to client); Brian Construction & Development Co. v. Brighenti, 176 Conn. 162, 166, 405 A.2d 72 (1978) (“[i]t is an accepted principle of law in this state that when a party agrees to perform an obligation for another to whom that obligation is already owed, although for lesser remuneration, the second agreement does not constitute a valid, binding contract”). Accordingly, it was not erroneous for the court to conclude that the second agreement was not supported by consideration and thus was unenforceable.

As an alternative ground for its conclusion, the court found that “[e]ven if, somehow, consideration could be breathed into the life of the [second] agreement, the court will not enforce it against the plaintiff.” As authority for this conclusion, the court cited a United States Court of Appeals for the Seventh Circuit decision written by Judge Richard Posner: “If you commit a material breach of contract, the other party can walk away from the contract without liability, and can do so as soon as you announce your intentions even if the time for the performance that you have repudiated hasn’t arrived.” American Hospital Supply Corp. v. Hospital Products Ltd., 780 F.2d 589, 599 (7th Cir.1986). The trial court reasoned: “In the present case, the defendant breached the [second] agreement, paying absolutely nothing on the contract and can certainly be deemed as having repudiated it altogether.” It is clear from the court’s findings that the defendant failed to perform under the second agreement. That agreement included a payment schedule and the defendant failed to make any payments pursuant to it. “One cannot recover upon a contract unless he has fully performed his own obligation under it, has tendered performance, or has some legal excuse for not performing.” Automobile Ins. Co. v. Model Family Laundries, Inc., 133 Conn. 433, 437, 52 A.2d 137 (1947); Shah v. Cover-It, Inc., 86 Conn. App. 71, 77, 859 A.2d 959 (2004). Accordingly, even if the second agreement was otherwise an enforceable contract, the defendant, who was clearly in breach, would not have a legal right to recover under it.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was defaulted and then failed to file timely any notice of defenses to be raised at a hearing in damages. Thus, the hearing in damages was limited to the defendant’s right to contest damages.

       The July 31, 2007 agreement reflects a total of $57,500.

       The second agreement did not provide for any of the collateral suggested by Schachter in his letter to the defendant.

       The defendant was not entitled to file any responsive pleading until and unless the default was vacated. See Automotive Twins, Inc. v. Klein, 138 Conn. 28, 33, 82 A.2d 146 (1951) (“[a default] is an order of the court the effect of which is to preclude the defendant from making any further defense in the case so far as liability is concerned”).

       The court explicitly noted that it accepted the plaintiffs calculation of damages for breach of the first agreement contained in the plaintiffs posttrial brief, which calculation included attorney’s fees, costs and interest.

       General Statutes § 52-72 (a) provides: “Any court shall allow a proper amendment to civil process which has been made returnable to the wrong return day or is for any other reason defective, upon payment of costs taxable upon sustaining a plea in abatement.”

       The writ of summons had a return date of June 10, 2007, while the original complaint had a return date of June 10, 2008. Both the complaint and the writ of summons were later amended to reflect a return date of June 3, 2008. No issue has been raised regarding the discrepancy between June 3 and June 10.

       Practice Book § 10-61 provides: “When any pleading is amended the adverse party may plead thereto within the time provided by Section 10-8 or, if the adverse party has already pleaded, alter the pleading, if desired, within ten days after such amendment or such other time as the rules of practice, or the judicial authority, may prescribe, and thereafter pleadings shall advance in the time provided by that section. If the adverse party fails to plead further, pleadings already filed by the adverse party shall be regarded as applicable so far as possible to the amended pleading.”

       In her reply brief, the defendant relies on General Statutes § 52-130, which provides: “Parties may amend any defect, mistake or informality in the pleadings or other parts of the record or proceedings. When either party supposes that in any part of the pleadings he has missed the ground of his plea, and that he can plead a different plea that will save him in his cause, he may change his plea, answer, replication or rejoinder, as the case may be, and plead anew, and the other party shall have reasonable time to answer the same; and, in any case when a party amends or alters any part of the pleadings or pleads anew, if it occasions any delay in the trial or inconvenience to the other party, he shall be liable to pay costs at the discretion of the court. Any court may restrain the amendment or alteration of pleadings, so far as may be necessary to compel the parties to join issue in a reasonable time for trial.” This section allows amendments in some situations and allows responses to substantive amendments. It does not affect the result in this case.

       The Restatement of Contracts and Professor Williston’s treatise on contracts use the term “substituted contract.” Our Supreme Court has used “substitute contract”; see, e.g., Assn. Resources, Inc. v. Wall, 298 Conn. 145, 186, 189, 2 A.3d 873 (2010); and “substituted contract.” See, e.g., Tolland Enterprises v. Scan-Code, Inc., 239 Conn. 326, 333 n.9, 684 A.2d 1150 (1996). This court has used “substitute contract;” see, e.g., Atlas v. Miller, 20 Conn. App. 680, 682, 570 A.2d 219 (1990); and has quoted a Restatement provision addressing “substituted contract.” See Friedman v. Millpit Corp., 49 Conn. App. 354, 358 n.3, 713 A.2d 1288, cert. denied, 247 Conn. 925, 719 A.2d 1168 (1998). We use “substitute contract” in this opinion but note that our usage of the term encompasses “substituted contract” as used by the Restatement and Williston’s treatise.

       Neither party has disputed that the first agreement was a valid contract.

       Avery common type of subsequent agreement premised on existing legal obligations involves the question of “whether a promise to pay additional compensation for the continued performance of work which the promisee is already obligated to the promisor to do by the terms of an existing contract, is supported by a sufficient consideration.” Blakeslee v. Board of Water Commissioners, 106 Conn. 642, 649, 139 A. 106 (1927). In Blakeslee, supra, 106 Conn. 656, our Supreme Court concluded that “where a contract must be performed under burdensome conditions not anticipated, and not within the contemplation of the parties at the time when the contract was made, and the promisee measures up to the right standard of honesty and fan-dealing, and agrees, in view of the changed conditions, to pay what is then reasonable, just, and fair, such new contract is not without consideration within the meaning of that term, either in law or in equity.” (Internal quotation marks omitted.) This court quoted the basis for this rule in New England Rock Services, Inc. v. Empire Paving, Inc., 53 Conn. App. 771, 777-78, 731 A.2d 784, cert. denied, 250 Conn. 921, 738 A.2d 658 (1999): “What unforeseen difficulties and burdens will make a party’s refusal to go forward with his contract equitable, so as to take the case out of the general [preexisting duty] rule and bring it within the exception, must depend upon the facts of each particular case. They must be substantial, unforeseen, and not within the contemplation of the parties when the contract was made.” (Internal quotation marks omitted.) In Blakeslee, for example, the parties did not contemplate that the United States would become involved in World War I, thus creating an inability to secure laborers for the contract. Id., 645. Similarly, in Brian Construction & Development Co. v. Brighenti, supra, 176 Conn. 169, the court held that substantial rubble beneath the surface of the construction site that all parties agreed had to be removed was an unforeseen burdensome condition.

        The present case is perhaps unusual in that the sum that the defendant owed under the first agreement was reduced by the terms of the second agreement, while the plaintiff was subject to the same performance obligations under both agreements. The alteration of one party’s obligations by requiring additional compensation while the other party’s duties remain unchanged, as in Blakeslee, is, however, analogous. In the present case, the only reason present in the record for the defendant’s nonpayment is her inability to pay. We cannot conclude that that was an unforeseen substantial burden not within the contemplation of the parties at the time of the making of the first agreement, particularly when the defendant was involved in a pending marital dissolution action at which her interest in part of her husband’s assets was going to be determined. Accordingly, the circumstances in the present case do not fall under the exception to the preexisting duty rule articulated in Blakeslee.

       We note that in the present case, the plaintiff fully performed and the defendant did not fully perform the obligations under the second agreement. Had full performance been rendered by both parties pursuant to the second agreement and the plaintiff sought to bring an action to enforce the first agreement, equitable principles may arguably have applied to reach a different result. “Under the law of contract, a promise is generally not enforceable unless it is supported by consideration. . . . [Our Supreme Court] has recognized, however, the development of liability in contract for action induced by reliance upon a promise, despite the absence of common-law consideration normally required to bind a promisor. . . . Section 90 of the Restatement [(Second) of Contracts] states that under the doctrine of promissory estoppel [a] promise which the, promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. ... A fundamental element of promissory estoppel, therefore, is the existence of a clear and definite promise which a promisor could reasonably have expected to induce reliance.” (Internal quotation marks omitted.) Saye v. Howe, 92 Conn. App. 638, 647-48, 886 A.2d 1239 (2005).


author: BISHOP, J.

text:
    O’MOY SHAW v. DERON D. FREEMAN
    (AC 31658)
    Robinson, Bishop and Schaller, Js.

      Argued November 17, 2011 —
    officially released March 6, 2012

      Richard H. Kosinski, for the appellant (plaintiff).

      Peter T. Fay, with whom was Sandy T. Roussas, for the appellee (defendant).
   Opinion

BISHOP, J.

The plaintiff, O’Moy Shaw, appeals from the summary judgment rendered by the trial court in favor of the defendant, Deron D. Freeman. On appeal, the plaintiff claims that the court improperly (1) rendered summary judgment when genuine issues of material fact exist and (2) sustained the defendant’s objections to her discovery requests. We agree in part with the first claim and, therefore, reverse in part the judgment of the trial court.

The following facts and procedural history are relevant to our discussion of the issues on appeal. The plaintiff retained the defendant to represent her interests in connection with her purchase of property located at 49-61 Edgewood Street in Hartford (property). In the performance of his representation of the plaintiff, the defendant in turn, retained the Ticor Title Insurance Company (Ticor) to perform a title search on the property. Ticor thereafter issued a title insurance certificate with respect to the property, dated July 6, 2006, which contained notice of the encumbrances at issue in this case. On July 14, 2006, the plaintiff purchased the property from Philip Case Weatherspoon Financial Group, LLC for the sum of $60,000.

After purchasing the property, the plaintiff discovered that it was subject to prior encumbrances, including (1) a January 23,1992 notice of violation by the city of Hartford and (2) a June 6, 2006 notice of emergency repair, also filed by the city of Hartford. In connection with those encumbrances, and after closing on the property, the plaintiff was billed $72,400 by the city of Hartford for demolition costs regarding a structure on the property, $4846 for asbestos sampling services and $950 for engineering fees. On the basis of the prior notification of violations, the building on the property was demolished by the city of Hartford on or about November 1, 2006. Thereafter, in October, 2007, the plaintiff commenced the present professional malpractice action, essentially claiming that, due to the defendant’s failure to adequately and competently represent her in conjunction with the purchase of this property, she received property burdened with numerous encumbrances which, in turn, negatively impacted its value and marketability.

On January 31, 2008, the plaintiff filed an amended complaint which contains four counts sounding respectively in: (1) negligence, (2) recklessness, (3) emotional distress based on negligence and (4) emotional distress based on recklessness. On March 17, 2008, the defendant filed his answer and special defenses, claiming that the plaintiff failed to have the property inspected, failed to take reasonable action to mitigate her damages, knowing it was a distressed property, and failed to perform her own due diligence in connection with her purchase of the property.

While this matter was pending in the trial court, the plaintiff filed a set of interrogatories and a request for production to which the defendant filed certain objections on April 7, 2008. On June 25, 2008, the court sustained twenty-one of the defendant’s twenty-nine objections. That court action is also a subject of this appeal.

On August 1, 2008, the defendant filed a Chapter 7 bankruptcy petition in the United States Bankruptcy Court for the District of Connecticut. On October 3, 2008, the plaintiff filed a pleading in the Bankruptcy Court, captioned “motion for relief from stay re: insurance policy.” On October 23, 2008, the Bankruptcy Court entered an order modifying the automatic stay, permitting the plaintiff to continue and to prosecute to conclusion the present action against the defendant, but with express, specific limitations as to any recovery that the plaintiff could obtain. By the terms of the Bankruptcy Court’s order, the plaintiff could proceed with the state court action “but only to establish the [defendant’s] liability as a prerequisite to seeking a monetary recovery from the [defendant’s] insurance carrier, with actual recovery limited to the extent of applicable insurance coverage . . . On November 12, 2008, the Bankruptcy Court issued an order of discharge pursuant to 11 U.S.C. § 727.

On March 23, 2009, the defendant filed a motion for summary judgment in which he claimed that, at the time of the alleged professional negligence, he had in place an insurance policy with limitations and exclusions barring the plaintiff’s recovery. Following receipt of the parties’ memoranda in support of and in opposition to the motion for summary judgment, the court, on October 13, 2009, granted summary judgment on all four counts of the plaintiffs complaint. This appeal followed. Additional facts will be set forth as necessary.

I

On appeal, the plaintiff first claims that the court improperly granted summary judgment as to each of the four counts of her complaint. We agree with the plaintiffs claim with respect to the first count and disagree as to the remaining counts.

We first set forth the applicable standard of review of a trial court’s ruling on a motion for summary judgment. “Summary judgment shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. . . . 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.) Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 786-87, 967 A.2d 1 (2009).

As ordered by the Bankruptcy Court, any potential recovery that would be available to the plaintiff is limited “to the extent of applicable insurance coverage.” As a result, and based on the manner in which the parties presented, and the court decided, their dispute, our analysis rests on a determination of whether there is applicable insurance coverage available to the plaintiff under the defendant’s lawyers professional liability policy for the claims set forth in the plaintiffs complaint. This assessment, in turn, requires an examination of the language of the insurance contract at issue. In examining the language of insurance policies, our standard of review is well settled. “[Construction of a contract of insurance presents a question of law for the court which this court reviews de novo.” (Internal quotation marks omitted.) Connecticut Medical Ins. Co. v. Kulikowski, 286 Conn. 1, 5, 942 A.2d 334 (2008). The “rule of construction favorable to the insured extends to exclusion clauses.” (Internal quotation marks omitted.) Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., supra, 290 Conn. 796. Finally, as it pertains to an analysis of coverage in an insurance contract, Connecticut law is clear that a court must conclude that “the language should be construed in favor of the insured unless it has a high degree of certainty that the policy language clearly and unambiguously excludes the claim.” (Internal quotation marks omitted.) Id.

“In determining whether the terms of an insurance policy are clear and unambiguous, [a] court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity .... Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms. ... As with contracts generally, a provision in an insurance policy is ambiguous when it is reasonably susceptible to more than one reading. . . . Under those circumstances, any ambiguity in the terms of an insurance policy must be construed in favor of the insured because the insurance company drafted the policy.” (Citations omitted; internal quotation marks omitted.) Connecticut Medical Ins. Co. v. Kulikowski, supra, 286 Conn. 6.

Mindful of these principles, we turn to the insurance policy at issue. The defendant’s professional liability policy (policy) provides coverage for claims against the defendant by reason of an act or omission in the performance of legal services by the defendant or by any person for whom the defendant is legally hable. The policy, however, contains several coverage exclusions. Paragraph B of the exclusion section states: “This policy does not apply to any claim for bodily injury, or injury to, or destruction of, any tangible property, including the loss of use resulting therefrom except that the exclusion of bodily injury does not apply to mental injury, mental anguish, mental tension or emotional distress caused by personal injury . . . .” Bodily injury is defined by the policy as “injury to the body, sickness or disease sustained by any person, including death resulting from such injuries; or mental injury, mental anguish, mental tension, emotional distress, pain or suffering or shock sustained by any person whether or not resulting from injury to the body, sickness, disease or death of any person.” Personal injury is defined by the policy as “an injury resulting from an act or omission arising out of: false arrest, detention, or imprisonment; wrongful entry, or eviction, or other invasion of the right of private occupancy; libel, slander, or other disparaging or defamatory materials; a writing or saying in violation of an individual’s right to privacy; malicious prosecution or abuse of process.”

We turn now to the plaintiffs claims and their intersections with relevant provisions of the policy. In advancing his motion for summary judgment, the defendant argued that each of the plaintiffs claims is for the destruction of the building on the property and, therefore, excluded by the terms of the policy. In response, the plaintiff argues that the exclusion provision regarding destruction of tangible property does not apply to the unique facts of this case because the negligent act by the defendant occurred long before the building was demolished and that, while destruction of the building is an element of the diminished value of the property, this is not a claim for destruction as contemplated in the policy. More specifically, the plaintiff argues that her claims are based on allegations of negligent acts or omissions by the defendant in the performance of legal representation. The plaintiff further points out that she makes no claim that the defendant caused the destruction of her property. Rather, she claims that her damages were caused by the defendant’s failure to adequately review a title search and because of this shortcoming, the defendant failed to learn of an order from the city of Hartford which, by its terms, resulted in the razing of the building by the city with attendant cost to the plaintiff, as property owner. The plaintiff reasons, therefore, that because her claims are premised on the defendant’s allegedly negligent failure to advise her of the encumbrances on the property prior to purchase, and not on a claim that the defendant destroyed the property, the exclusion in the policy should not bar her recovery.

In response, the defendant argues that the language of the contract excluding coverage for the destruction of “tangible property” is clear, unambiguous, and includes structures located on real property, and that because all of the plaintiffs claims arise from the demolition of the building, they constitute claims for “injury to or destruction of tangible property” and are, accordingly, excluded under the policy.

We agree with the plaintiff that her claims, if proven, emanate, not from the destruction of property by the defendant, but rather from the defendant’s failure to adequately review the title policy and search the land records in preparation for the transfer of the property. Significantly, the plaintiff is not seeking damages for the destruction of the building itself, but, rather, for the losses she incurred from actions taken by the city of Hartford pursuant to the encumbrances recorded in the land records that the defendant should have advised her of prior to the closing. Viewed in this light, the plaintiffs claims for damages, including the cost of razing the building, engineering services and asbestos sampling are more properly characterized as claims of damages arising from the defendant’s alleged malpractice. As such, they are not claims “arising from the injury to or destruction of tangible property.” Therefore, while the destruction of the property may be implicated in one aspect of the plaintiffs claim for monetary damages, the claim is based in negligence. Thus, the first count of the complaint sounding in negligence and based on the defendant’s acts or omission in regards to his representation of the plaintiff in connection with the purchase of the property is not excluded from coverage by the policy. Accordingly, summary judgment was not properly granted as to the first count.

The defendant additionally argues that, regardless of whether the plaintiff’s claims emanate from the destruction of property, the court correctly determined that counts three and four of the complaint seeking damages for emotional distress are explicitly excluded by the policy. We agree.

As previously noted, claims for “bodily injury”, which include emotional distress, are excluded from the policy unless they flow from personal injury. Personal injury, in turn, is defined by the policy as “an injury resulting from an act or omission arising out of: false arrest, detention, or imprisonment; wrongful entry, or eviction, or other invasion of the right of private occupancy; libel, slander, or other disparaging or defamatory materials; a writing or saying in violation of an individual’s right to privacy; malicious prosecution or abuse of process.” Since the pleadings do not set forth a claim for personal injury as covered by the policy, the plaintiff’s associated claims for emotional distress fall outside the policy’s coverage. Therefore, the court properly determined that the plaintiff could not pursue her claims for emotional distress and summary judgment was correctly rendered as to counts three and four.

The defendant further argues that the court properly granted summary judgment as to the second count on the basis that claims for reckless and wanton conduct are excluded from coverage in the policy. The defendant claims, as well, that since the factual allegations in the second count simply mirror the claims set forth in the first count based on negligence, the alleged behaviors, even if proven, do not constitute wanton or reckless behavior. We agree with the defendant’s second basis for affirming the trial court as to this count. While we are not persuaded by the defendant’s argument that the policy does not provide coverage for wanton or reckless conduct, we agree that the court correctly determined that the factual allegations of the second count, even if proven, do not constitute wanton or reckless conduct because negligent conduct does not become reckless or wanton merely by relabeling the behavior. See Brown v. Branford, 12 Conn. App. 106, 110, 529 A.2d 743 (1987) (“[a] plaintiff cannot transform a negligence count into a count for wilful and wanton misconduct merely by appending a string of adjectives to allegations that clearly sound in negligence”). See also Angiolillo v. Buckmiller, 102 Conn. App. 697, 705, 927 A.2d 312, cert. denied, 284 Conn. 927, 934 A.2d 243 (2007) (“[mjerely using the term ‘recklessness’ to describe conduct previously alleged as negligence is insufficient as a matter of law”).

The factual allegations set forth in the first count, if proven, could form the basis for a fact finder to conclude that the defendant had been negligent. There are no allegations in this count, however, that would justify a finding of wanton or reckless conduct if proven. Because the second count simply incorporates the allegations of negligent conduct contained in the first count and recharacterizes such conduct as reckless and wanton, summary judgment was properly granted as to count two.

II

The plaintiffs second claim on appeal is that the court improperly sustained the defendant’s objections to her discovery requests. We disagree.

As a threshold matter, since discovery rulings are typically interlocutory, we must determine if there is an appealable final judgment in this case in order to determine whether the discovery claim is appropriate for review. “The lack of a final judgment is a jurisdictional defect that mandates dismissal.” (Internal quotation marks omitted.) Kobyluck v. Zoning Board of Appeals, 70 Conn. App. 55, 58, 796 A.2d 567 (2002). “[Wjhenever a court discovers that it has no jurisdiction, it is bound to dismiss the case, without regard to [its] previous rulings.” (Internal quotation marks omitted.) Zoning Commission v. Fairfield Resources Management, Inc., 41 Conn. App. 89, 103, 674 A.2d 1335 (1996). Generally, “orders relating to discovery do not constitute a final judgment and are not appealable both because their initial determination does not so conclude the rights of the appealing party that further proceedings cannot affect those rights . . . and because . . . their import is fully apprehended only after trial is concluded.” (Citations omitted; internal quotation marks omitted.) State v. Fielding, 296 Conn. 26, 38, 994 A.2d 96 (2010). Here, because the trial court granted summary judgment, there is an appealable final judgment. The discovery claim asserted by the plaintiff is, therefore, ripe for review.

“With respect to the appropriate standard of review [regarding the court’s ruling on discovery], Practice Book § 13-14 (a) provides in relevant part that a trial court may, on motion [to compel production], make such order as the ends of justice require. Consequently, the granting or denial of a discovery request rests in the sound discretion of the court . . . and can be reversed only if such an order constitutes an abuse of that discretion. The ultimate issue in our review is, therefore, whether the trial court reasonably could have concluded as it did.” (Internal quotation marks omitted.) Advanced Financial Services, Inc. v. Associated Appraisal Services, Inc., 79 Conn. App. 22, 42, 830 A.2d 240 (2003).

On the basis of our review of the plaintiffs discovery requests, the defendant’s objections and the court’s subsequent rulings, we find no reason to conclude that the court’s rulings constituted an abuse of discretion. Furthermore, the plaintiff has failed to demonstrate how responses to any of the discovery requests would have assisted her in prosecuting her claims or that the discovery sought would have created a genuine issue of material fact. See Coss v. Steward, 126 Conn. App. 30, 47, 10 A.3d 539 (2011). Accordingly, we conclude that the court did not abuse its discretion in sustaining the defendant’s objections to the discovery requests.

The judgment is reversed only as to count one of the complaint alleging negligence and the case is remanded for further proceedings according to law. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The plaintiff claims the following damages are the consequence of the defendant’s conduct: (1) the property she purchased was worth substantially less than the $60,000 pinchase price, (2) she was obliged to pay the city of Hartford for demolition and related costs which a reasonable review of the title search would have prevented, (3) she is obliged to pay the principal and interest on a loan she undertook in order to finance the purchase of the property and (4) she suffered emotional distress as a consequence of the defendant’s failures.

       On November 30, 2009, the plaintiff filed a motion for articulation of the court’s rulings on the defendant’s objections to discovery requests, which the court denied on April 1, 2010. Thereafter, on June 16, 2010, this court, upon the plaintiffs motion for review, ordered the trial court to articulate the rationale for its objection ruling. The trial court issued its articulation on October 20, 2010.

       The filing of a bankruptcy petition with the Bankruptcy Court operates as a stay, applicable to all actions or proceedings against the debtor. 11 U.S.C. § 362 (a). The Bankruptcy Court, however, has the power to grant relief from the automatic stay. 11 U.S.C. § 362 (d) through (g). See also Stec v. Raymark Industries, Inc., 114 Conn. App. 81, 85 n.3, 968 A.2d 960 (2009), rev’d on other grounds, 299 Conn. 346, 10 A.3d 1 (2010).

       The Bankruptcy Court order, dated November 12,2006, reads as follows:
      “DISCHARGE OF DEBTOR
      “It appearing that the debtor [Deron D. Freeman] is entitled to a discharge.
      “IT IS ORDERED:
      “The debtor is granted a discharge under section 727 of title 11, United States Code, (the Bankruptcy Code).”

       We note the unusual procedural posture of this case due to the overlapping bankruptcy proceeding. While it is not readily apparent from the pleadings whether the defendant is insured for the losses claimed by the plaintiff, and thus presents an issue of material fact, neither party has made the claim that insurance was not a proper subject for the court’s consideration in ruling on the motion for summary judgment. Indeed, the plaintiff responded to the motion for summary judgment on the apparent basis that the presence or absence of insurance coverage was a material fact integral to her claims. Since both parties and the court treated the issue of insurance coverage in this manner and neither party now claims that the court ruled on a question that is not material to the plaintiffs claims, we will review the appeal as it has been framed and presented by the parties and decided by the trial court.

       It should also be noted that the plaintiffs counsel conceded during oral argument on the motion for summary judgment that, if the trial court considered the authenticated insurance policy as proper evidence, then her emotional distress claims are likely not covered. The following exchange took place between the trial court and the plaintiffs counsel:
      The Court: “Well, on the third count, the definition of bodily injury in the policy includes emotional distress in its exclusion. However, the exclusion does not apply to emotional distress caused by personal injury. But under personal injury, emotional distress is not included. So I think, at least as to counts three and four, it seems to me the motion for summary judgment should be granted, as well as punitive or exemplary [damages], because I do not think that punitive or exemplary damages can be sustained without a count of recklessness. Do you want to address that?”
      * * *
      [The Plaintiffs Counsel]: “I don’t have a further argument, because the policy is pretty clear on that particular issue. So it’s just on the issue — if the court is going to consider the policy, I think that the plaintiff does have— it certainly appears that the language is part of the exclusion. I don’t think I can deny that, quite candidly.”

       Our conclusion regarding this claim does not imply that the plaintiff should be precluded from seeking further discovery on remand.