author: LAVINE, J.

text:
    LAURENCE V. PARNOFF v. LAURA MOONEY
    (AC 32493)
    DiPentima, C. J., and Lavine and Borden, Js.
    Argued October 17
    officially released December 13, 2011

      Christopher T. Richtarich, with whom, on the brief, was Thomas J. Weihing, for the appellant (plaintiff).

      David P. Friedman and KaFei Wong, for the appellee (named defendant).
   Opinion

LAVINE, J.

This appeal arises out of a dispute between two attorneys, the plaintiff, Laurence V. Parnoff, and the defendant, Laura Mooney, over their respective representation of the same client, Darcy Yuille, on separate but overlapping matters. The plaintiff appeals from the judgment of the trial court, rendered following a jury trial, in favor of the defendant on the plaintiffs complaint and the defendant’s counterclaim. On appeal, the plaintiff claims that the court improperly (1) denied his motions for a directed verdict, to set aside the verdict and for a new trial and for judgment notwithstanding the verdict, on the plaintiffs interference with a contract claim, (2) struck his claim for punitive damages for intentional interference with a contract, and (3) denied his motions for a directed verdict, to set aside the verdict and for judgment notwithstanding the verdict, on the defendant’s quantum meruit counterclaim. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In early 1996, Yuille retained the defendant to represent her before the workers’ compensation commissioner in a claim for benefits in connection with injuries she incurred while working at Bridgeport Hospital (hospital). During her representation of Yuille, the defendant perceived what she believed to be bad faith conduct on the part of the hospital in relation to the workers’ compensation claim. She began documenting the hospital’s processing of Yuille’s workers’ compensation requests in preparation for a lawsuit to be brought in Superior Court at some point in the future.

On September 16, 1998, Yuille met with the plaintiff to discuss bringing a wrongful discharge claim against the hospital for retaliating against Yuille for bringing the workers’ compensation claim. Thereafter, the plaintiff decided to take the case. There was a misunderstanding among Yuille, the plaintiff and the defendant, however, as to what the plaintiffs representation of Yuille would entail. The plaintiff believed he was retained to pursue a wrongful termination case, including a claim for bad faith conduct. Yuille and the defendant, on the other hand, believed that the plaintiff only was pursuing a wrongful discharge claim and not an additional bad faith claim.

In November, 1998, the plaintiff caused an action to be commenced against the hospital on Yuille’s behalf. The complaint contained a wrongful discharge count alleging retaliation for the workers’ compensation claim, and a reckless and intentional conduct count alleging bad faith delay in wage payments and medical treatment. Between 1998 and 2003, at the request of the plaintiff, the defendant provided the plaintiff with numerous documents and information that the defendant obtained during her representation of Yuille before the workers’ compensation commissioner and in preparation for the bad faith administration claim.

On July 11, 2002, the plaintiff sent the defendant a letter requesting Yuille’s medical bills and reports in preparation for a mediation session “regarding the bad faith claims . . . .” Upon reading the letter, the defendant realized for the first time that the plaintiff was pursuing a bad faith claim in addition to a wrongful discharge claim. After consulting with Yuille, the defendant caused an action to be filed against the hospital for bad faith administration of Yuille’s workers’ compensation claim.

In November, 2002, the plaintiff entered into an agreement with the hospital on behalf of Yuille to arbitrate the claims brought in the 1998 complaint. Thereafter, the defendant sought to consolidate for arbitration Yuille’s bad faith administration claim with the claims pursued by the plaintiff. Counsel for the hospital, however, refused to agree to consolidate, and the arbitration panel denied the defendant’s request. The plaintiff and the defendant then agreed, in front of the arbitration panel, to divide their representation of Yuille with regard to the hospital’s bad faith conduct. The plaintiff would pursue Yuille’s bad faith conduct claim for acts that occurred prior to mid-December, 1999, in arbitration, while the defendant would pursue the bad faith conduct that occurred after mid-December, 1999, in Superior Court.

Despite the agreement, the plaintiff offered evidence at the arbitration proceeding of acts that occurred after December, 1999. On June 29,2004, the arbitration panel awarded Yuille $1,096,032.93 on her bad faith claim but found in favor of the hospital on her wrongful discharge claim. The panel did not specify the time encompassed by the award. The defendant requested that the arbitration panel clarify the time period of the award. One of the panel members wrote to the defendant, stating that the panel would not clarify the decision in the absence of a request from the plaintiff, which the plaintiff refused to do. In August, 2004, Yuille and counsel for the defendant, attorney William F. Gallagher, separately requested that counsel for the hospital include the defendant’s name on any settlement check in relation to the arbitration award. The defendant did not ask either individual to make the request on her behalf.

Thereafter, the plaintiff brought this action against the defendant, alleging interference with a contract, bad faith interference with a contract, defamation and bad faith defamation, and seeking punitive damages and attorney’s fees. The defendant brought a counterclaim against the plaintiff, alleging, among other counts, a quantum meruit claim. After a nine day trial, during which approximately 100 exhibits were admitted into evidence, the jury returned a verdict for the defendant on the plaintiffs complaint. The jury also returned a verdict for the defendant on the quantum meruit counterclaim and awarded the defendant $4000. After denying the plaintiffs various posttrial motions, the court rendered judgment in accordance with the verdict. This appeal followed.

I

The plaintiff first claims that the court improperly failed to grant his motions for a directed verdict, to set aside the verdict and for judgment notwithstanding the verdict regarding the plaintiffs interference with a contract claim. The defendant argues that the plaintiff inadequately briefed this claim. We agree and, accordingly, decline to review the claim.

“ [ W] e are not required to review claims that are inadequately briefed. . . . We consistently have held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . [F]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed. . . . The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited.” (Internal quotation marks omitted.) Paoletta v. Anchor Reef Club at Branford, LLC, 123 Conn. App. 402, 406, 1 A.3d 1238, cert. denied, 298 Conn. 931, 5 A.3d 491 (2010).

In support of his first claim, the plaintiffs brief consists almost entirely of a chart listing seventeen trial exhibits, out of more than 100, and a short description of each. The plaintiff contends that these documents “support the plaintiffs claims of tortious interference by the defendant and [the] plaintiffs testimony in that regard.” Following a few abstract assertions without any citation to authority or the record, the plaintiff provides a block quote describing the elements of a tortious interference claim. “Briefs submitted to this court require rigorous legal analysis. It is not the role of this court to undertake the legal research and analyze the facts in support of a claim or argument when it has not been briefed adequately.” Mundell v. Mundell, 110 Conn. App. 466, 478, 955 A.2d 99 (2008). We therefore decline to review this claim.

II

The plaintiff next claims that the court improperly struck his claim for punitive damages for intentional interference with a contract. Because the plaintiff concedes that we should address this claim only if we reverse the trial court’s judgment on the interference with a contract claim, we need not address this claim. See part I of this opinion.

Ill

The plaintiff next claims that the court improperly failed to grant his motions for a directed verdict, to set aside the verdict and for judgment notwithstanding the verdict regarding the defendant’s quantum meruit counterclaim. Specifically, the plaintiff argues that there was insufficient evidence that the defendant provided services from which the plaintiff benefited and that there was insufficient evidence of an implied contract between the parties. We disagree.

“The standard of review applied to directed verdicts is clear. A directed verdict is justified if, on the evidence the jury reasonably and legally could not have reached any other conclusion.” Gagne v. Vaccaro, 255 Conn. 390, 400, 766 A.2d 416 (2001). This standard of review also applies to the plaintiffs motions to set aside the verdict and for judgment notwithstanding the verdict. See Macchietto v. Keggi, 103 Conn. App. 769, 778-79, 930 A.2d 817, cert. denied, 284 Conn. 934, 935 A.2d 151 (2007). “A determination of a quantum meruit claim requires a factual examination of the circumstances and of the conduct of the parties . . . that is not a task for an appellate court [but rather for the trier of fact].” (Internal quotation marks omitted.) Stewart v. King, 121 Conn. App. 64, 73, 994 A.2d 308 (2010).

“ [Q]uantum meruit [is a form] of the equitable remedy of restitution by which a plaintiff may recover the benefit conferred on a defendant in situations where no express contract has been entered into by the parties. ... [It is] available to a party when the trier of fact determines that an implied contract for services existed between the parties, and that, therefore, the plaintiff is entitled to the reasonable value of services rendered.” (Citation omitted; internal quotation marks omitted.) Id., 72-73. The implied contract, however, does not have to be one implied in fact. See Gagne v. Vaccaro, supra, 255 Conn. 401. Rather, it may be an implied in law contract. Cf. id. “In distinction to an implied [in fact] contract, a quasi [or implied in law] contract is not a contract, but an obligation which the law creates out of the circumstances present, even though a party did not assume the obligation, and may not have intended but in fact actually dissented from it. . . . It is based on equitable principles to operate whenever justice requires compensation to be made. . . . With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed to examine the circumstances and the conduct of the parties and apply this standard.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Bershtein, Bershtein & Bershtein, P.C. v. Nemeth, 221 Conn. 236, 242, 603 A.2d 389 (1992).

On the basis of our review of the record, we agree with the trial court that there was sufficient evidence from which the jury reasonably could have found that the plaintiff benefited from the defendant’s assistance. The defendant testified that she carefully documented the bad faith conduct of the hospital, which she would not have done if she did not intend to pursue a bad faith claim on Yuille’s behalf, and that she provided the plaintiff with this information at his request. We conclude, considering the circumstances and conduct of the parties, that a reasonable jury could find that an implied in law contract existed. We therefore conclude that the court properly denied the plaintiffs motions.

The judgment is affirmed.

In this opinion the other judges concurred.

       Yuille also was an intervening defendant in the underlying action, but she is not a party to this appeal. We therefore refer to Laura Mooney as the defendant.

       The defendant initially attempted to refer the lawsuit for bad faith administration of Yuille’s workers’ compensation claim to the plaintiff, but, after the plaintiff failed to provide a timely response, the defendant and Yuille decided that the defendant would pursue this claim while, at the same time, pursuing Yuille’s claim before the workers’ compensation commissioner. Around the same time, the defendant also referred Yuille to a third attorney to pursue a wrongful discharge claim against the hospital on Yuille’s behalf.
      The plaintiff eventually contacted the defendant and, upon being informed that he no longer was needed, offered his services in the event that any of the defendant’s “clients ever needed [the plaintiff’s] services again.” Shortly thereafter, the third attorney decided against taking the wrongful discharge case. The defendant then recommended that Yuille ask the plaintiff to represent her on the wrongful discharge claim.

       On June 21, 2005, this court affirmed the judgment of the trial court in favor of the hospital on the claim pursued by the defendant on Yuille’s behalf on the ground that the remedies provided by the Workers’ Compensation Act exclusively governed Yuille’s claim. See Yuille v. Bridgeport Hospital, 89 Conn. App. 705, 706-707, 874 A.2d 844 (2005).

       For example, the plaintiff requested that the defendant bring her file to a meeting with the plaintiff and the plaintiffs expert, and at the meeting the plaintiff made copies of the file. Additionally, the plaintiff requested that the defendant testily at an arbitration hearing as to Yuille’s reactions to the delayed wage payments and medical treatment, which the defendant did.


source: Caselaw Access Project

author: BEACH, J.

license: Public Domain

text:
    ANDREW MONTANARO, JR., ET AL. v. WILLIAM B. BALCOM ET AL.
    (AC 32253)
    Gruendel, Beach and West, Js.

      Argued October 11
    officially released December 13, 2011

      Christopher J. Molyneaux, with whom, on the brief, was Norman J. Voog, for the appellants (plaintiffs).

      Jennifer S. Mullen, with whom was Thomas Boyce, for the appellees (defendant William Richeimer et al.).
   Opinion

BEACH, J.

The plaintiff Andrew Montanaro, Jr., appeals from the judgment of the trial court granting a motion for summary judgment in favor of the defendants William Richeimer and Norwich Orthopedic Group, P.C. (Norwich Orthopedic). The plaintiff claims that the court erred in granting the defendants’ motion for summary judgment. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. In 2006, the plaintiff commenced a medical malpractice action against the defendants. In his amended complaint, the plaintiff alleged the following. On or about January 13,2004, the plaintiff was admitted to William W. Backus Hospital in Norwich under the care of Norwich Orthopedic for the purpose of a revision left knee arthroplasty and related procedures. William B. Balcom, an orthopedic surgeon, performed the surgery and then advised the plaintiff that he was leaving for vacation and that his partner, Richeimer, would provide postoperative care. The plaintiff remained at the hospital. In the approximately two day period following the surgery, he experienced several complications, including a compartment syndrome. Neither Richeimer nor any other physician from Norwich Orthopedic provided any postoperative care to the plaintiff for approximately two days. On January 15, 2004, Richeimer entered the plaintiffs hospital room, noticed that he had developed compartment syndrome in his left lower leg and, as a result, performed emergency surgery on the plaintiffs left leg. The plaintiff alleged that, as a result of the delay in postoperative treatment, he suffered permanent physical injuries and mental anguish.

In March, 2007, the defendants filed requests for admission. The second request stated: “Balcom evaluated the plaintiffs post-operative condition on Wednesday, January 14, 2004 and prepared a progress note in the hospital chart on that date regarding that visit.” In response, the plaintiff admitted the statement as fact.

In April, 2009, the defendants filed a motion for summary judgment seeking judgment as to the counts of the complaint made pertaining to them. In their motion, they argued that the plaintiff was evaluated by Balcom on January 14, 2004, and, therefore, the plaintiff cannot prove that there was a breach of the standard of care. The motion was accompanied by, inter alia, an excerpt from the deposition of the plaintiffs sole medical expert, Lawrence Shall, in which Shall stated: “The standard of care on a major surgery is to be evaluated while in the hospital on a daily basis . . . .” Also included was an affidavit from Balcom in which he stated: “I examined [the plaintiff] at [William W.] Backus Hospital on Wednesday, January 14, 2004. I wrote a progress note dated January 14,2004, which reflects my examination of him on that date. ... At the time of my examination of [the plaintiff] on January 14, 2004, he did not have any signs or symptoms of compartment syndrome in his left lower extremity.”

The plaintiff filed an opposition to the defendants’ motion for summary judgment. Attached to the opposition was, inter alia, an affidavit from the plaintiff in which he stated that Balcom saw him in the recovery room on January 13, 2004, but that neither Balcom nor any other physician “saw” him on January 14, 2004.

In its memorandum of decision, filed March 17, 2010, the court granted the defendants’ motion for summary judgment. The court determined, as the parties had agreed in their briefs and during argument, that the crux of the defendants’ motion was whether there was a genuine issue of material fact as to whether Balcom, Richeimer or any other physician from Norwich Orthopedic evaluated the plaintiff in the period of time following a postoperative evaluation by Balcom on January 13, 2004, and prior to the visit made by Richeimer on January 15, 2004. The court noted that in support of their position that Baleom had evaluated the plaintiff on January 14, 2004, the defendants offered Balcom’s affidavit in which he attested to such. The court also noted that the plaintiff presented countervailing evidence suggesting that no physician from Norwich Orthopedic, including Baleom or Richeimer, evaluated him until January 15, 2004. The court stated that if this were the only evidence before it, then a genuine issue of material fact would exist. The court noted, however, that the plaintiffs response to the defendants’ second request for admission, on which the defendants also rely in their motion for summary judgment, was dispositive. The court concluded that under Practice Book § 13-24, the plaintiffs response “ ‘conclusively established’ ” that Baleom evaluated the plaintiff on January 14, and that the plaintiff was precluded from filing affidavits contradicting that admission. In the absence of a motion to withdraw or to modify the admission, the court granted the defendants’ motion for summary judgment. This appeal followed.

We begin our analysis with the well established standard of review. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . Our review of the trial court’s decision to grant [the defendants’] motion for summary judgment is plenary. . . . Issues of statutory construction ... are also matters of law subject to our plenary review.” (Citation omitted; internal quotation marks omitted.) Rodriguez v. Testa, 296 Conn. 1, 6-7, 993 A.2d 955 (2010).

The plaintiff argues that, despite his admission that Balcom “evaluated” his condition on January 14, the court erred in granting the defendants’ motion for summary judgment. He apparently claims that the standard of care requires something more than an evaluation, which he argues could occur without a physician actually seeing the plaintiff in person and/or examining him. He argues that affidavits by himself, his wife and an acquaintance, Diane Simpson, tended to show that Balcom never saw him on January 14, 2004, and therefore create a genuine issue of material fact as to that issue. He contends that, as a result, he is entitled to bring this issue before the jury.

The plaintiffs response to the defendants’ request for admission that admitted that Balcom “evaluated the plaintiffs post-operative condition on Wednesday, January 14, 2004,” is a binding judicial admission. See East Haven Builders Supply, Inc. v. Fanton, 80 Conn. App. 734, 744, 837 A.2d 866 (2004). Practice Book § 13-24 (a) provides in relevant part: “Any matter admitted under this section is conclusively established unless the judicial authority on motion permits withdrawal or amendment of the admission. . . .” The plaintiff did not file a motion seeking to withdraw or to amend the admission prior to the court’s filing of its memorandum of decision on March 17, 2010.

The plaintiff points to affidavits submitted with his opposition, in which he and others stated that no physician saw him on January 14. Balcom stated in his affidavit that he “examined” the plaintiff on January 14. This potential discrepancy does not matter in light of the expression of the plaintiffs expert of the standard of care and the plaintiffs admission. The plaintiff admitted that Balcom evaluated his condition on January 14. In his deposition, Shall stated: “The standard of care on a major surgery is to be evaluated while in the hospital on a daily basis . . . .” (Emphasis added.) This statement as to the standard of care was undisputed for the purpose of the motion. There was no further questioning refining the meaning of “evaluate.” There is no question of fact whether Balcom evaluated the plaintiff on January 14, 2004. The identical vocabulary was used in the recitation of the standard of care and the admission as to Balcom’s conduct. Accordingly, the defendants are entitled to judgment as a matter of law, and the court did not err in granting the defendants’ motion for summary judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       Andrew Montanaro, Jr.’s wife, Janice Montanaro, also was named as a plaintiff. Her claim of loss of consortium is derivative of her husband’s claims. For clarity, we refer to Andrew Montanaro, Jr., as the plaintiff.

       The amended complaint also named William W. Backus Hospital and William B. Balcom as defendants. The count against Balcom was stricken and the count against the hospital was withdrawn. We therefore refer to Richeimer and Norwich Orthopedic as the defendants.

       The plaintiff argues, however, that under Practice Book § 13-24 (b), he is entitled to explain his admission at trial. Section 13-24 (b) provides in relevant part: “The admission of any matter under this section shall not be deemed to waive any objections to its competency or relevancy. . . .” This subsection is not applicable because the plaintiff is not challenging the competency or relevancy of the admission but, rather, attempts to contradict it.

       The defendants attached a portion of Shall’s deposition transcript to their motion for summary judgment. Because neither party attached the full deposition transcript as an exhibit, we can rely only on the excerpted portion.


author: PER CURIAM.

text:
    OSMAN ASIF v. COMMISSIONER OF CORRECTION
    (AC 32307)
    Alvord, Espinosa and Bishop, Js.

      Argued October 18
    officially released December 13, 2011

      Michael D. Day, for the appellant (petitioner).

      James A. Killen, senior assistant state’s attorney, with whom, on the brief, was Kevin T. Kane, chief state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Osman Asif, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court abused its discretion in denying certification to appeal the judgment of the habeas court and improperly dismissed his petition for a writ of habeas corpus on the ground that it was successive pursuant to Practice Book § 23-29 (3). We disagree and, accordingly, dismiss the petitioner’s appeal.

The record reveals the following relevant facts and procedural history. On June 14, 2005, the petitioner pleaded guilty under the Alford doctrine in two separate dockets to two counts of larceny in the third degree in violation of General Statutes § 53a-124. On September 2, 2005, in accordance with a plea agreement, the court rendered judgment and imposed a total effective sentence of ten years incarceration, execution suspended after four years, with five years of probation.

The petitioner subsequently filed an amended petition for a writ of habeas corpus in May, 2009, in which he alleged that his trial counsel rendered ineffective assistance, claiming, inter alia, that his attorney failed to advise him adequately with respect to the consequences of accepting the plea agreement. The habeas court denied the petition and the subsequent petition for certification to appeal. The petitioner appealed from the habeas court’s judgment, claiming that he was deprived of the effective assistance of counsel because his trial attorney failed to advise him of the immigration consequences of his guilty pleas. Because the petitioner failed to distinctly raise that claim before the habeas court, this court dismissed his appeal. See Asif v. Commissioner of Correction, 127 Conn. App. 599, 14 A.3d 498 (2011).

On March 10, 2010, the petitioner filed the present petition for a writ of habeas corpus claiming ineffective assistance of counsel on the ground that he was not advised of the immigration consequences of his guilty pleas. Specifically, the petitioner claimed that he was not advised that he would be subject to deportation as a result of his pleas and resulting criminal convictions. On April 5,2010, the habeas court dismissed the petition pursuant to Practice Book § 23-29 (3), concluding that the petition “presents the same ground as a prior petition previously denied and fails to state new facts or proffer new evidence not reasonably available at the time.” The habeas court denied the petition for certification to appeal. This appeal followed.

We first set forth our standard of review. “Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion.” Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). To prove an abuse of discretion, the petitioner must demonstrate “that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Id., 616. “If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.” Id., 612.

“Practice Book § 23-29 provides in relevant part: The judicial authority may, at any time, upon its motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that ... (3) the petition presents the same ground as a prior petition previously denied and fails to state new facts or proffer new evidence not reasonably available at the time of the prior petition .... In this context, a ground has been defined as sufficient legal basis for granting the relief sought. . . .

“[A] petitioner may bring successive petitions on the same legal grounds if the petitions seek different relief.

. . . But where successive petitions are premised on the same legal grounds and seek the same relief, the second petition will not survive a motion to dismiss unless the petition is supported by allegations and facts not reasonably available to the petitioner at the time of the original petition.” (Citations omitted; internal quotation marks omitted.) McClendon v. Commissioner of Correction, 93 Conn. App. 228, 231, 888 A.2d 183 (2006).

Here, the petitioner concedes that he is not raising a new issue in his petition because his previous petition also claimed ineffective assistance of counsel. He contends, however, that new facts have arisen that entitle him to elude dismissal pursuant to Practice Book § 23-29 (3). The petitioner contends that the United States Supreme Court’s decision in Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), constitutes a new fact because, in Padilla, the court held that the sixth amendment right to competent counsel was implicated when a noncitizen defendant was not advised by his counsel prior to making his guilty plea that deportation virtually was mandatory. The petitioner argues also that Padilla does not set forth a new rule in requiring that a criminal defendant be advised of the immigration consequences of a plea agreement, and, therefore, the holding in Padilla can be applied retroactively. Although we find somewhat inconsistent the petitioner’s argument that Padilla represents a new fact but does not set forth a new rule, his argument, in its best light, is of no avail to the petitioner. The petitioner has not cited, nor are we aware of, any legal authority that supports his contention that the holding of a judicial opinion constitutes a new fact or new evidence as contemplated by Practice Book § 23-29 (3). In making his novel argument, the petitioner seeks only to elude the well established rule that one may not bring successive petitions. Here, the petition at hand is premised on the same legal grounds, ineffective assistance of counsel, and seeks the same relief as the petitioner’s previous petition. Accordingly, we conclude that the habeas court properly dismissed the petitioner’s writ as successive and did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

       See North Carolina v. Alford, 400 U.S. 25, 37-39, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       We note that the petitioner was advised by the court during the court’s canvass of the petitioner prior to his plea of the potential immigration consequences of his guilty pleas should he not be a citizen of the United States. In response, the petitioner indicated to the court that he understood those potential consequences.


author: BISHOP, J.

text:
    LISA NOEL ET AL. v. RIBBITS, LLC, ET AL.
    (AC 32552)
    Beach, Bishop and Mihalakos, Js.
    Argued October 14
    officially released December 13, 2011

      Gregg D. Adler, with whom was Nicole M. Rothgeb, for the appellants (plaintiffs).

      John R. Williams, for the appellees (defendants).

      Kathleen Eldergill and Robert J. Kor filed a brief for the Connecticut Employment Lawyers Association as amicus curiae.

      Charles Krich, principal attorney, filed a brief for the commission on human rights and opportunities as amicus curiae.
   Opinion

BISHOP, J.

The plaintiffs, Lisa Noel and Jessica Wildowsky, appeal from the trial court’s judgment awarding attorney’s fees in their favor. On appeal, the plaintiffs challenge the amount of the court’s award, claiming that the court improperly relied solely on the contingency provisions of their fee agreements in calculating the award. We agree and, accordingly, reverse the judgment of the trial court.

On December 7, 2009, the plaintiffs filed a third amended complaint against the defendants, their former employers, Ribbits, LLC, Edward Birkmanis and Gustav Birkmanis. The plaintiffs each alleged discrimination on the basis of sex and sexual harassment in violation of General Statutes § 46a-60 (a) (1) and (8) of the Connecticut Fair Employment Practices Act (act), General Statutes § 46a-51 et seq.; assault and battery; retaliation for complaining of sex discrimination and sexual harassment in violation of § 46a-60 (a) (4) of the act; and intentional infliction of emotional distress. Following a jury trial, the jury returned a verdict for the plaintiffs on their claims under § 46a-60 (a) (1) and (8) of the act but found in favor of the defendants on the remaining claims. The jury awarded Noel $1600 in economic damages but did not award her damages for emotional distress. The jury did not award any damages to Wildowsky. The court thereafter rendered judgment in accordance with the jury’s verdict.

Subsequently, on February 10, 2010, the plaintiffs filed a motion for attorney’s fees and costs, accompanied by supporting affidavits, pursuant to Practice Book § 11-21 and General Statutes § 46a-104. The plaintiffs sought attorney’s fees in the aggregate amount of $160,731.25 and costs of $4997.84. The defendants objected to the plaintiffs’ claim for attorney’s fees on the ground that their respective fee agreements were contingent and based on a percentage of monetary damages awarded by the jury. The court agreed with the defendants and, following a hearing, issued a memorandum of decision basing its order on the one-third contingency provision of the plaintiffs’ fee agreements. The court reasoned that, because Wildowsky did not recover any monetary damages, she was not entitled to any attorney’s fees. The court awarded Noel attorney’s fees in the amount of $533.33, one third of the $1600 jury award in her favor. This appeal followed.

On appeal, the plaintiffs claim that the court improperly based its award of attorney’s fees solely on the one-third contingency provision of their fee agreements to the exclusion of other pertinent language in their fee agreements. These agreements contained the following identical provisions: “In the event of a successful resolution of the case, I agree that my attorneys shall be compensated at the rate of one-third of the entire settlement or judgment I receive in connection with my claims or an award of reasonable attorney’s fees, whichever is greater.” (Emphasis added.) The plaintiffs contend that the court should not have relied solely on the one-third contingency provision in their fee agreements but, rather, should have analyzed the reasonableness of their claim for attorney’s fees. We agree.

“It is well established that we review the trial court’s decision to award attorney’s fees for abuse of discretion. . . . This standard applies to the amount of fees awarded . . . and also to the trial court’s determination of the factual predicate justifying the award. . . . Under the abuse of discretion standard of review, [w]e will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Internal quotation marks omitted.) Simms v. Chaisson, 277 Conn. 319, 325, 890 A.2d 548 (2006).

Here, in considering the plaintiffs’ claims for attorney’s fees, the court limited its consideration to the contingency provision of the fee agreements. The court concluded that it would “not depart from the terms of the contingency fee agreements because they do not do substantial unfairness to the [plaintiffs].” In fashioning its award, the court did not consider the provision in the agreements for a reasonable award that might be greater than one based solely on the jury’s award of damages. Because the court ignored that provision of the fee agreements, under which the plaintiffs clearly were pursuing their quests for fees, and failed to assess the reasonableness of their claim for fees, we must conclude that the court’s award was improper.

The judgment is reversed and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       The jury specifically determined that each plaintiff proved, “by a fair preponderance of the evidence, that [Ribbits] discriminated against her in violation of [the act] by subjecting her to sexual harassment due to a hostile work environment.”

       Practice Book § 11-21 provides: “Motions for attorney’s fees shall be filed with the trial court within thirty days following the date on which the final judgment of the trial court was rendered. If appellate attorney’s fees are sought, motions for such fees shall be filed with the trial court within thirty days following the date on which the appellate court or supreme court rendered its decision disposing of the underlying appeal. Nothing in this section shall be deemed to affect an award of attorney’s fees assessed as a component of damages.”

       General Statutes § 46a-104 provides: “The court may grant a complainant in an action brought in accordance with section 46a-100 such legal and equitable relief which it deems appropriate including, but not limited to, temporary or permanent injunctive relief, attorney’s fees and court costs.”

       The award of costs has not been challenged by either party.

       The defendants argue that the court’s award of attorney’s fees was proper because the amount of attorney’s fees should be commensurate with the nominal damages awarded by the jury. We disagree that one must flow from the other. Our Supreme Court has held that “there is a strong public policy reason for giving courts discretion to award substantial attorney’s fees when the plaintiffs claim for damages and recovery is not large.” Simms v. Chaisson, 277 Conn. 319, 334, 890 A.2d 548 (2006). Thus, in assessing reasonable counsel fees, the court should fairly extend its consideration to other factors in addition to the amount of the damages award.

       We note that: “[T]he initial estimate of a reasonable attorney’s fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate. . . . The courts may then actjust this lodestar calculation by other factors. . . . For guidance in adjusting attorney’s fees, Connecticut courts have adopted the twelve factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). The Johnson factors are (1) the time and labor required, (2) the novelty and difficulty of the questions, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee for similar work in the community, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation and ability of the attorneys, (10) the undesirability of the case, (11) the nature and length of the professional relationship with the client and (12) awards in similar cases.” (Citation omitted; internal quotation marks omitted.) Ernst v. Deere & Co., 92 Conn. App. 572, 576, 886 A.2d 845 (2005).

       When a judgment of the trial court is reversed and the matter is remanded to the trial court for further proceedings, the matter is typically assigned to a different trial judge. Here, however, the parties agree, and we concur, that this case should be remanded to the judge who presided over the jury trial for a determination of the reasonableness of the plaintiffs’ claim for attorney’s fees because the judge who presided over the trial is in the best position to make an assessment of reasonable attorney’s fees.


author: BISHOP, J. ALVORD, J.,

text:
    CONGRESS STREET CONDOMINIUM ASSOCIATION, INC. v. FREDERICK L. ANDERSON ET AL.
    (AC 32580)
    Gruendel, Alvord and Bishop, Js.
    Argued September 15
    officially released December 20, 2011

      Eric D. Coleman, for the appellant (named defendant).

      Thompson G. Page, for the appellee (plaintiff).
   Opinion

BISHOP, J.

In this action to foreclose a statutory hen, the defendant Frederick L. Anderson, appeals from the summary judgment rendered by the trial court in favor of the plaintiff, Congress Street Condominium Association, Inc., as to liability only, based on the nonpayment of common charges and fines. On appeal, the defendant claims that the court improperly granted the plaintiffs motion for summary judgment regarding the imposition of fines. The defendant claims, as well, that his special defense of equitable estoppel was properly before the court and created a genuine issue of material fact as to whether the plaintiff validly levied fines against him. We agree and accordingly reverse the judgment of the trial court.

The following factual and procedural history is relevant to this appeal. On June 10, 2009, the plaintiff filed an action to foreclose a lien pursuant to General Statutes § 47-258 for common charges, assessments and fines levied against the defendant, a condominium unit owner. On July 20, 2009, the defendant filed an answer, in which he responded to the allegations in the complaint, and later filed a request to amend with an amended answer on February 2, 2010, in which he included special defenses and a counterclaim. In his amended answer, the defendant alleged that the plaintiff did not provide some of its requisite services as a condominium association and that the plaintiff engaged in inconsistent practices that resulted in the arbitrary and discriminatory application of the bylaws, rules and procedures. Additionally, the defendant counterclaimed that he was entitled to reimbursement for money that he expended to repair dangerous conditions on his property. On February 23, 2010, the plaintiff filed a motion to strike the defendant’s special defenses and counterclaim, which the trial court granted on March 30, 2010, without objection.

On March 29, 2010, the plaintiff reclaimed its motion for summary judgment as to liability only. On April 12, 2010, the parties participated in a hearing on the motion for summary judgment, at which time the court inquired about the defendant’s failure to respond to the plaintiffs motion. The defendant stated that he would file an opposition to the motion for summary judgment by the end of the next day. The following day, however, the defendant did not file a response to the motion for summary judgment; rather, he filed a second request for leave to amend his answer. His second amended answer contained a special defense alleging that the plaintiff should be equitably estopped from asserting that the defendant violated the condominium bylaws, rules or procedures, thereby precluding any assessment of fines against him. The defendant also filed an amended counterclaim, alleging that he had suffered emotional distress from the plaintiffs arbitrary and capricious treatment of him. The plaintiff objected to the second request for leave to amend his answer as untimely. On April 16,2010, the defendant filed a memorandum of law in opposition to the plaintiffs motion for summary judgment in which he raised the same issues as those alleged in his second amended answer.

On April 26, 2010, the court sustained the plaintiffs objection to the defendant’s second request for leave to amend his answer and granted the plaintiffs motion for summary judgment as to liability only, finding that the issues raised in the defendant’s memorandum in opposition to the motion for summary judgment did not defeat the plaintiffs right to collect common charges and fines from the defendant. The plaintiff then filed a motion for judgment of strict foreclosure, which was granted. The court determined that the debt was $10,808.75, $5400 of which was attributed to fines, with $1814.20 of priority debt. This appeal followed.

On appeal, the defendant claims that summary judgment was improper because the court failed to credit the special defense of equitable estoppel as a legally viable basis for his claim that the plaintiff invalidly levied fines against him. We agree.

The applicable standard of review is well settled. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . The test is whether the party moving for summary judgment would be entitled to a directed verdict on the same facts. . . . Our review of the trial court’s decision to grant [a] motion for summary judgment is plenary.” (Internal quotation marks omitted.) Allstate Life Ins. Co. v. BFA Ltd. Partnership, 287 Conn. 307, 312, 948 A.2d 318 (2008).

“Only one of the . . . defenses needs to be valid in order to overcome the motion for summary judgment. [S]ince a single valid defense may defeat recovery, [a] motion for summary judgment should be denied when any defense presents significant fact issues that should be tried. 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure (2d Ed. 1983) § 2734.” (Internal quotation marks omitted.) Union Trust Co. v. Jackson, 42 Conn. App. 413, 417, 679 A.2d 421 (1996).

Although we have discovered no statutory or appellate authority regarding the admissibility of special defenses in an action to foreclose a statutory lien instituted by a condominium association based on a unit owner’s nonpayment of fines, several trial court decisions have held that special defenses and counterclaims will not he in an action brought by a condominium association to foreclose hens based on a unit owner’s failure to pay common charges. In granting summary judgment, the court explicitly relied on Commodore Commons Condominium Assn. v. Austin, Superior Court, judicial district of Ansonia-Milford, Docket No. 058025 (March 4,1999) (24 Conn. L. Rptr. 116) (Commodore Commons), in its finding that equitable estoppel was not a valid defense to the defendant’s nonpayment of the amount due to the condominium association. On the basis of the holding of Commodore Commons, the court concluded, instead, that such a claim would be more appropriately raised in a separate action. Commodore Commons, however, only addressed the payment of common charges, and articulated a limitation of defenses for nonpayment of such charges. Id., 117. The reasoning of Commodore Commons or similar trial court decisions regarding the nonpayment of common charges neither logically nor necessarily applies to the nonpayment of fines.

The court in Commodore Commons reasoned that “the nonpayment [of common charges] jeopardizes the continued existence of the entire condominium community and shifts the need for payment to other innocent unit owners.” Id. With respect to common charges, our trial courts also have determined that, if the defendant wishes to pursue his grievance against the association, it must be done in a separate action, not by a refusal to pay his common charges. Otherwise, courts have reasoned, the other unit owners, who are entitled to have the budget funded by all of the unit owners, would have their economic welfare threatened. See Breakwater Key Assn., Inc. v. Monaco, Superior Court, judicial district of Fairfield, Docket No. CV-93-0301263-S (March 7, 1996) (16 Conn. L. Rptr. 282); Casagmo Condominium Assn., Inc., Phase II v. Kaufman, Superior Court, judicial district of Danbury, Docket No. 303889 (March 15, 1993).

Thus, although, as noted, trial courts consistently have precluded the pleading of special defenses and counterclaims in actions to foreclose statutory hens based on the nonpayment of common charges in order to safeguard the economic welfare of the condominium community, this reasoning is not necessarily applicable to the nonpayment of fines. Because fines are an unpredictable source of income for the condominium association and, therefore, not a fixed component of the association’s budget, there is no reason to conclude that their payment or nonpayment directly impacts the condominium community’s economic welfare. For this reason, the type of expedited proceedings embraced by our trial courts in actions to foreclosure statutory hens based on the nonpayment of common charges is unnecessary in actions for the nonpayment of fines.

We conclude, therefore, that due to the inherent differences in the application and function of fines and common charges, they should not be treated interchangeably in a foreclosure action. Rather, the permissible special defenses and counterclaims in an action to foreclose a statutory lien based on the imposition of fines by a condominium association should be determined in light of traditional mortgage foreclosure standards, which permit the assertion of certain special defenses, including that of equitable estoppel. See Barasso v. Rear Still Hill Road, LLC, 81 Conn. App. 798, 805, 842 A.2d 1134 (2004); LaSalle National Bank v. Freshfield Meadows, LLC, 69 Conn. App. 824, 838, 798 A.2d 445 (2002). In an action by a condominium association to foreclose a lien based on the nonpayment of fines, the defendant unit owner, therefore, should not be required to file a separate action to assert a special defense relating to the validity of the imposition of fines. Accordingly, in the present case, the court improperly rendered summary judgment on the basis that the special defense of equitable estoppel was not properly before it, and the court should have considered the special defense in determining whether the plaintiff was entitled to judgment as a matter of law.

The judgment is reversed and the matter is remanded to the trial court for further proceedings consistent with this opinion.

In this opinion GRUENDEL, J., concurred.

ALVORD, J.,

dissenting. I respectfully dissent because I conclude that the trial court properly granted the motion for summary judgment as to liability filed by the plaintiff, Congress Street Condominium Association, Inc., as against the defendant Frederick L. Anderson. The record reflects that the court sustained the plaintiffs objection to the defendant’s second request to amend his answer, which included a special defense of equitable estoppel and a counterclaim, on the same day that it granted the plaintiffs motion for summary judgment. Without the special defense and counterclaim, the court correctly determined that there was no genuine issue of material fact with respect to the defendant’s liability.

I rely on the following facts and procedural history. The plaintiff filed its complaint in June, 2009. On July 20, 2009, the defendant filed his answer without any special defenses or counterclaims. On January 20,2010, the plaintiff filed a motion for summaiy judgment as to liability only against the defendant. On February 2, 2010, the defendant filed a request for leave to file an amended answer with special defenses and a counterclaim. The plaintiff filed a motion to strike the special defenses and counterclaim on February 23,2010, which was granted by the court, absent objection by the defendant, on March 30, 2010. At that point, the plaintiff reclaimed its motion for summary judgment, and a hearing was scheduled for April 12, 2010. On April 13, 2010, the defendant filed his second request for leave to amend his answer. His second amended answer included the special defense of equitable estoppel and a counterclaim seeking damages for emotional distress.

The following day, the plaintiff filed an objection to the defendant’s second request for leave to amend the answer. Stating that the parties already had appeared at a hearing on the plaintiffs motion for summary judgment and that the second request to amend the answer included a special defense and counterclaim previously stricken by the court, the plaintiff argued that the second request was untimely and would cause prejudicial delay. The defendant did not file a response to the plaintiffs objection but did file a memorandum of law in opposition to the plaintiffs motion for summary judgment on April 16,2010. In that opposing memorandum, the defendant did argue that it would be premature for the court to rule on the plaintiffs motion for summary judgment because he had just filed his second amended answer with a special defense and a counterclaim. He claimed that the court was required to consider the substance of his substituted pleading in ruling on the motion for summary judgment because he had filed it within fifteen days of the striking of the special defenses and counterclaim in his first amended answer. See Practice Book § 10-44.

On April 26, 2010, the court issued two rulings. The court sustained, without comment, the plaintiffs objection to the defendant’s second request for leave to amend the answer. By separate order, the court granted the plaintiffs motion for summary judgment as to liability. In its order on the summary judgment motion, the court further noted that the issues raised by the defendant in his opposing memorandum of law did not constitute valid defenses to the plaintiffs foreclosure action.

On appeal, the defendant claims that the court improperly (1) sustained the plaintiffs objection to his request for leave to file his second amended complaint and (2) granted the plaintiffs motion for summary judgment because equitable estoppel is a valid defense to an action brought by a condominium association to foreclose a hen based on a unit owner’s failure to pay fines. The defendant should not prevail on either claim.

The standard of review for determining whether a trial court improperly ruled on a request to amend the pleadings is weh settled. “While our courts have been liberal in permitting amendments . . . this liberality has limitations. 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 motion to amend is addressed to the trial court’s discretion which may be exercised to restrain the amendment of pleadings so far as necessary to prevent unreasonable delay of the trial.” (Citations omitted; internal quotation marks omitted.) Connecticut National Bank v. Voog, 233 Conn. 352, 364, 659 A.2d 172 (1995).

The defendant argues that the court could not sustain the plaintiffs objection to his second request to amend because he had timely filed a substituted pleading with a special defense and counterclaim within the fifteen day period specified in Practice Book § 10-44. The short answer is that the provisions in that section do not preclude a party from filing an objection to the substituted pleading nor preclude the court from exercising its discretion in sustaining the objection. Practice Book § 10-60, which addresses the amendment of pleadings by consent, order of the judicial authority or by the failure of the adverse party to object, expressly allows a court to rule as the court did in the present case. Practice Book § 10-60 (b) provides in relevant part: “The judicial authority may restrain such amendments so far as may be necessary to compel the parties to join issue in a reasonable time for trial. If the amendment occasions delay in the trial or inconvenience to the other party, the judicial authority may award costs in its discretion in favor of the other party. For the purposes of this rule, a substituted pleading shall be considered an amendment. . . .” (Emphasis added.)

The plaintiff, in its objection to the defendant’s second request to amend, detailed the procedural posture of the case and claimed that the request was untimely and that allowing the amendment would prejudice the plaintiff “by allowing the defendant to continue to delay [the] plaintiffs foreclosure action.” The court simply sustained the plaintiff’s objection without comment. In challenging the court’s ruling, the sole argument proffered by the defendant is that the order “is contrary to the import of [Practice Book §] 10-44 ... in that the defendant had the right to file a new or substitute special defense and counterclaim.” In light of Practice Book § 10-60, and for the reasons previously discussed, I conclude that the judgment of the trial court should be affirmed.

Without a special defense and counterclaim, there is no genuine issue of material fact as to liability that would preclude the court’s granting of the plaintiff’s motion for summary judgment. It is true, as the majority indicates, that the court mentioned the defendant’s claim of equitable estoppel in its decision granting the motion for summary judgment. See footnote 5 of this dissent. I conclude that the two sentence comment by the court in this regard was dicta. Having denied the defendant’s request to amend his answer, the court did not have the special defense of equitable estoppel in the pleadings before it. It is fundamental in our law that “any judgment should conform to the pleadings, the issues and the prayers for relief.” (Internal quotation marks omitted.) Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 686, 804 A.2d 823 (2002). “The [trial] court is not permitted to decide issues outside of those raised in the pleadings.” (Internal quotation marks omitted.) Gaffey v. Gaffey, 91 Conn. App. 801, 804 n.1, 882 A.2d 715, cert. denied, 276 Conn. 932, 890 A.2d 572 (2005).

For these reasons, I conclude that the court did not abuse its discretion in sustaining the plaintiffs objection to the defendant’s second request to amend his answer and that the court properly granted the plaintiffs motion for summary judgment as to liability because there was no genuine issue of material fact. Accordingly, I respectfully dissent.

       The condominium unit at issue also was subject to two mortgages at the time of the action. The mortgagees, as subsequent encumbrancers, also were named as defendants in this action, but they are not parties to this appeal. We therefore refer in this opinion to Anderson as the defendant.

       The record reflects that the court disallowed a counterclaim filed by the defendant in which he alleged that he had endured emotional distress as a result of the plaintiffs discriminatory treatment of him. As set forth more fully in this opinion, we look to traditional mortgage foreclosure standards to determine the applicable special defenses and counterclaims in an action to foreclose a statutory lien based on the nonpayment of fines. On the basis of those principles, we find no fault with the court’s determination regarding the counterclaim.

       In the defendant’s brief to this court, he concedes that he was obligated to pay the common charges that the plaintiff levied against him.

       The defendant also claims that the plaintiff failed to conduct a hearing prior to levying fines against him in violation of the plaintiffs bylaws and that the plaintiffs complaint was legally insufficient with regard to its alleged bases for levying said fines. The plaintiff argues that these claims were not properly preserved for review. We agree with the plaintiff, and accordingly, decline to address those claims. See Practice Book § 60-5.

       General Statutes § 47-258 provides in relevant part: “(a) The association has a statutory lien on a unit for any assessment attributable to that unit or fines imposed against its unit owner. Unless the declaration otherwise provides, reasonable attorneys’ fees and costs, other fees, charges, late charges, fines and interest charged pursuant to subdivisions (10), (11) and (12) of subsection (a) of section 47-244 and any other sums due to the association under the declaration, this chapter, or as a result of an administrative, arbitration, mediation or judicial decision, are enforceable in the same manner as unpaid assessments under this section. If an assessment is payable in installments, the full amount of the assessment is a lien from the time the first installment thereof becomes due.
      “(b) A lien under this section is prior to all other liens and encumbrances on a unit except (1) liens and encumbrances recorded before the recordation of the declaration and, in a cooperative, liens and encumbrances which the association creates, assumes or takes subject to, (2) a first or second security interest on the unit recorded before the date on which the assessment sought to be enforced became delinquent, or, in a cooperative, a first or second security interest encumbering only the unit owner’s interest and perfected before the date on which the assessment sought to be enforced became delinquent, and (3) liens for real property taxes and other governmental assessments or charges against the unit or cooperative. The lien is also prior to all security interests described in subdivision (2) of this subsection to the extent of (A) an amount equal to the common expense assessments based on the periodic budget adopted by the association pursuant to subsection (a) of section 47-257 which would have become due in the absence of acceleration during the six months immediately preceding institution of an action to enforce either the association’s lien or a security interest described in subdivision (2) of this subsection and (B) the association’s costs and attorney’s fees in enforcing its lien. A lien for any assessment or fine specified in subsection (a) of this section shall have the priority provided for in this subsection in an amount not to exceed the amount specified in subparagraph (A) of this subsection. This subsection does not affect the priority of mechanics’ or materialmen’s liens or the priority of liens for other assessments made by the association. . . .”

       The plaintiff claims that it levied fines against the defendant because he replaced a window in his unit with a door in violation of the plaintiffs bylaws, rules and procedures.

       The original motion for summary judgment as to liability only was filed on January 20, 2010.

       As we understand this record, it appears that although the court denied the defendant’s request to amend his answer, special defense, and counterclaim, the court nevertheless considered the adequacy of the allegations contained in these pleadings in conjunction with granting the plaintiffs motion for summary judgment.

       See, e.g., Commodore Commons Condominium Assn. v. Austin, Superior Court, judicial district of Ansonia-Milford, Docket No. 058025 (March 4, 1999) (24 Conn. L. Rptr. 116) (special defenses not allowed because they did not relate directly to payment, discharge, release, satisfaction or invalidity nor were they allegations of mistake, accident, or fraud); Heritage Sound Condominium Assn. v. Nucifora, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-98-061169-S (March 13, 2000) (special defense not allowed because it did not arise from same transaction); Bayview Condominium Assn. v. Skibitcky, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-97-0060615-S (April 2, 1998) (21 Conn. L. Rptr. 625) (special defense not allowed because it did not arise from same transaction); Broad Street School Condominium Corp. v. Minneman, Superior Court, judicial district of New London at Norwich, Docket No. 0111179 (April 23,1997) (special defense not allowed for policy reason that common charges are for good of condominium community); Mountain View Condominium Assn, of Vernon, Connecticut, Inc. v. Rumford Associates IV, Superior Court, judicial district of Tolland, Docket No. CV-94-55693-S (March 4, 1997) (counterclaim not allowed because it did not arise from same transaction; special defense not allowed for policy reason that common charges are for good of condominium community); Watch Hill Condominium, Inc. v. Van Eck, Superior Court, judicial district of New Haven, Docket No. CV-93-0344796-S (June 14,1996) (17 Conn. L. Rptr. 198) (special defenses and counterclaims not allowed because they did not arise from same transaction); Breakwater Key Assn., Inc. v. Monaco, Superior Court, judicial district of Fairfield, Docket No. CV-93-0301263-S (March 7, 1996) (16 Conn. L. Rptr. 282) (special defense not allowed for policy reason that common charges are for good of condominium community); see also First Seabreeze Assn., Inc. v. Barnett, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-94-0138851-S (March 29, 1995) (special defenses and counterclaim not allowed because they did not arise from same transaction); Wilton Crest Condominium v. Stern, Superior Court, judicial district of Fairfield, Docket No. CV-92-0300406-S (August 13, 1993) (8 C.S.C.R. 955) (special defenses not allowed because they did not arise from same transaction); but see Colonial Court Homeowners Assn. v. Cole, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV-96-0560458-S (October 11, 1996) (18 Conn. L. Rptr. 113) (denying motion to strike defendant’s special defense on grounds that court disagreed with other trial courts’ findings that special defenses should be struck for either not arising from same transaction or for policy reason that common charges are for good of condominium community).

       In coming to this conclusion, we do not reach the question of whether the pleading, as proffered by the defendant, adequately sets forth the claim of equitable estoppel. We conclude only that such a defense, if properly pleaded, may be raised in defense of an action by a condominium association to foreclose liens based on the imposition of fines.

       The plaintiff filed its foreclosure complaint against several defendants. Because Frederick L. Anderson is the only defendant involved in this appeal, I refer to him in this dissent as the defendant.

       The hearing on the plaintiffs motion for summary judgment as to liability was held on April 12, 2010. The defendant did not file any documents in opposition to the summary judgment motion prior to the hearing. At the hearing, the court inquired whether the defendant still wanted the opportunity to address the plaintiffs claim for summary judgment. The defendant responded that he would like to file a memorandum and an affidavit and indicated that he could probably do so the following day. He did not file the memorandum in opposition to the motion for summary judgment on April 13, 2010, but, rather, filed his second request for leave to amend his answer. The defendant filed his opposing memorandum on April 16, 2010.

       The special defense alleged that another unit owner had acted in a similar fashion in altering her unit, that the plaintiff did not impose fines or any other sanction against her and that the plaintiff should therefore be equitably estopped from imposing fines or any other penalty against the defendant. The counterclaim alleged that the defendant sustained emotional distress and incurred expenses as the result of the plaintiffs “impermissible arbitrary, capricious and discriminatory treatment toward him.”

       Practice Book § 10-44 provides in relevant part: “Within fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading . . . .”

       The court’s order is as follows: “SUMMARY JUDGMENT GRANTED AS TO LIABILITY ONLY IN ACCORDANCE WITH [PRACTICE BOOK §] 11-10.
      “The issues raised by the defendant in his memorandum in opposition to summary judgment are not those which constitute a valid defense to payment of amounts due to a condominium for the reasons stated in Commodore Commons Condominium Assn. v. Austin, [Superior Court, judicial district of Ansonia-Milford, Docket No. 058025 (March 4, 1999) (24 Conn. L. Rptr. 116)] and cases cited therein. As that case states, the issues raised by the defendant are more appropriately raised in a separate action, and cannot defeat the [condominium [association’s right to collect fees due.”

       Although the defendant raised additional claims in this appeal, I agree with the majority’s resolution of those claims. See footnote 4 of the majority’s opinion.

       The defendant conceded at oral argument that there would be no genuine issue of material fact to be determined if the special defense and the counterclaim were eliminated.

       Whether an allegation of equitable estoppel is a viable defense to an action by a condominium association to foreclose a lien for unpaid fines is an issue of first impression for this court. The majority concludes that the reasoning that precludes the pleading of special defenses and counterclaims in actions to foreclose statutory liens based on the nonpayment of common charges is not applicable to the nonpayment oí fines. Because the condominium documents, including a full copy of the declaration, bylaws, and rules and regulations, were not submitted as exhibits in this case, I would not have reached the merits of this claim because the record is inadequate. A review of the documents that address the circumstances under which such fines are imposed is required, in my opinion, before a well reasoned analysis can be provided by this court.


author: FLYNN, J.

text:
    STATE OF CONNECTICUT v. TYRONESHA MILES
    (AC 32421)
    DiPentima, C. J., and Gruendel and Flynn, Js.

      Argued October 18
    officially released December 20, 2011

      Elizabeth M. Inkster, senior assistant public defender, with whom, on the brief, was Silvia KnoxDelamar, certified legal intern, for the appellant (defendant).

      Linda F. Currie-Zeffiro, assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Margaret E. Kelley, senior assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, J.

The defendant, Tyronesha Miles, appeals from the judgment of conviction, rendered after a trial by jury, of attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54 (a), and assault in the first degree in violation of General Statutes § 53a-59 (a) (1) arising out of the stabbing of Devore Anderson with a knife two times in the abdomen and three times in the back. The defendant claims that (1) the trial court improperly excluded evidence that Anderson had been stabbed five years earlier in an unrelated incident by an unidentified assailant, (2) the evidence was insufficient to support the conviction because the state failed to use forensic evidence to prove the identity of the perpetrator and (3) the evidence was insufficient to support the conviction because the state failed to prove that the defendant was the perpetrator. Because we conclude that the defendant never established any direct connection between the stabbing for which she was charged and the prior incident to establish its relevancy, and the trial evidence was sufficient, if believed, to establish the identity of the defendant as the person who committed the crimes charged, we affirm the judgment of conviction.

The following facts that the jury could have reasonably found inform our review. This case arises out of an August 7, 2009 assault that occurred in Bridgeport’s P.T. Bamum housing project. Anderson, however, also had been stabbed years earlier. No one identified that prior assailant as a person who fought with or stabbed Anderson in 2009.

In the late evening on August 7, 2009, two fights occurred between Anderson and the defendant. Anderson had known the defendant from the neighborhood prior to the first fight.

It is clear that the first fight commenced over remarks attributed to Anderson made earlier about Tameka King. Anderson admitted striking the defendant with a belt. Others were involved in this first fight, including Anderson’s sister, Taiwan Porter, who attempted to break it up. Porter got a good look at the defendant during the first fight. Ultimately, an unidentified man came upon the scene and broke up the fight.

The second incident occurred later in the evening. There was evidence before the jury that Anderson had remained on the scene of the first fight for approximately twenty minutes after it had ended, looking for lost money. She then left the area where the first fight had occurred and headed on to Shell Street. Anderson saw a person walking toward her, whose head was obscured by a hooded jacket, whom she first thought was a male. Streetlights were on but were dim. However, as the hooded person came closer to her she recognized the defendant, a female, by her gait and hair. She saw the defendant holding a knife. The defendant then said to Anderson: “[Y]ou wanna use weapons. I’ll kill you, bitch.” The defendant then stabbed Anderson twice in the abdomen and three times in the back, causing severe bleeding from the wounds that required hospitalization and surgery. Anderson saw the defendant’s girlfriend, Tameka King, standing on the comer of Shell Street and Ocean Terrace right before the defendant stabbed Anderson. When Anderson’s sister, Taiwan Porter, came to her defense, Anderson identified her assailant as “Ty.” Officer Milton Johnson also testified that Anderson exclaimed, “Ty did it,” in response to his questioning of her at the crime scene.

I

The defendant first claims that the trial court improperly excluded evidence that she proffered that Anderson had been stabbed by another person several years earlier and that the exclusion of this evidence “violated [her] right to due process and to present a defense, as guaranteed by the fifth, sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution . . . .” We are not persuaded.

At the outset we note that the defendant did not alert the trial court to claims under the state constitution. We do not review the state constitutional claims because the defendant does not make the separate analysis of the state constitutional claims that our Supreme Court required in State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992). See also State v. Robertson, 254 Conn. 739, 743 n.5, 760 A.2d 82 (2000).

Our review standard as to this type of third party culpability claim requires that we analyze the proffered evidence to determine whether it is relevant to the issue of whether someone other than the defendant committed the crimes with which the defendant was charged. State v. West, 274 Conn. 605, 625, 877 A.2d 787, cert. denied, 546 U.S. 1049, 126 S. Ct. 775, 163 L. Ed. 2d 601 (2005). The defendant never made any claim of violation of federal constitutional rights before the trial judge, which she now asserts for the first time on appeal. Her claim at trial was evidentiary. She now requests review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Her Golding claim fails because she has not shown that a constitutional violation clearly exists, as Golding requires. This is so because she has failed to show that evidence of third party culpability was relevant or exculpatory. Although Connecticut consistently has recognized that a defendant has a right to introduce such evidence, “[t]he defendant must, [in such cases], present evidence that directly connects a third party to the crime . . . .” (Emphasis added; internal quotation marks omitted.) State v. West, supra, 625. Although the defendant frames the appellate issue as one of a constitutional violation and evidentiary error, our ultimate conclusion turns on evidentiary grounds. Our Supreme Court has held that a defendant’s constitutional right to present a defense “does not require the trial court to forgo completely restraints on the admissibility of evidence. . . . Generally, an accused must comply with established rules of procedure and evidence in exercising his right to present a defense. ... A defendant, therefore, may introduce only relevant evidence, and, if the proffered evidence is not relevant, its exclusion is proper and the defendant’s right is not violated.” (Citations omitted.) State v. Cerreta, 260 Conn. 251, 261, 796 A.2d 1176 (2002); State v. Eagles, 74 Conn. App. 332, 335, 812 A.2d 124 (2002), cert. denied, 262 Conn. 953, 818 A.2d 781 (2003).

“Relevant evidence is evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence.” (Internal quotation marks omitted.) State v. West, supra, 274 Conn. 625; Conn. Code Evid. § 4-1.

In an offer of proof at trial, the defendant’s counsel sought to elicit testimony that five years previously Anderson had been stabbed. However, the state objected on the ground of relevance. After eliciting that testimony outside the jury’s presence, defense counsel represented to the court that there was “another individual who was present at the time, who stabbed this victim.” Counsel never offered to prove that this third party was the same party who committed the earlier stabbing assault. The defendant sought, through evidence of a stabbing assault five years earlier, to make out a defense of third party culpability. The defense counsel then sought to amplify the offer of the disputed evidence. He told the court: “Normally, people don’t walk around getting stabbed, so, the fact that there’s going to be testimony that it was somebody else and the fact that she’s been stabbed prior, lends credence, I believe, of probative value to the anticipated testimony, and it backs up the anticipated testimony to some degree.” The court excluded the evidence on the ground that it was irrelevant. The court ruled that the fact that someone else had stabbed Anderson several years earlier did not have probative value in the present case. However, the court advised counsel that if he later thought that the record had changed, he could ask the court to reconsider its ruling.

Accordingly, in explaining the requirement that the proffered evidence establish a direct connection to a third party, rather than raise merely a bare suspicion regarding a third party, our Supreme Court has stated: “Such evidence is relevant, exculpatory evidence, rather than merely tenuous evidence of third party culpability [introduced by a defendant] in an attempt to divert from himself the evidence of guilt.” (Internal quotation marks omitted.) State v. Arroyo, 284 Conn. 597, 609, 935 A.2d 975 (2007); State v. Smith, 280 Conn. 285, 304, 907 A.2d 73 (2006). That relevancy standard requires that there be a direct connection to the third party alleged to have committed the crime.

In the defendant’s proffer to the trial court, there was a complete absence of any evidence that directly connected a third party to the crimes for which the defendant had been charged. See State v. West, supra, 274 Conn. 625. There was no evidence offered outside the jury’s presence in the offer of proof about the physical appearance and features of the person who had stabbed Anderson years earlier. There was no evidence proffered as to the name or identity of the person who had stabbed Anderson several years earlier, nor was there any evidence proffered that this unnamed individual was at the scene on the night of August 7,2009, when Anderson again was stabbed. Additionally, “[e]vidence that a third party who is alleged to be responsible looked like the defendant is highly relevant.” State v. Eagles, supra, 74 Conn. App. 339; see also State v. Echols, 203 Conn. 385, 393-94, 524 A.2d 1143 (1987). Nothing in the defendant’s offer of proof purported to show that Anderson’s assailant of five years earlier bore any resemblance to the defendant. There was also no proffer that those who identified the defendant as the perpetrator might have confused the identity of the defendant with the unnamed assailant of five years earlier because of similarities in dress, height, or personal appearance. Nor was there other evidence providing any direct connection between whomever had stabbed Anderson five years earlier and the stabbing occurring on August 7, 2009 for which the defendant had been charged. With the complete lack of any evidence that directly connected the third party to the crimes for which the defendant had been charged, we conclude that the court properly excluded the evidence.

Alternatively, the defendant claims that the evidence of the stabbing five years earlier was admissible under the holding of State v. Cerreta, supra, 260 Conn. 251. In Cerreta, our Supreme Court distinguished between evidence that might be admissible to show third party culpability and evidence that was admissible as exculpatory. The court in Cerreta ruled that evidence of hair and fingerprints recovered by the police, which testimony showed were not those of the defendant, while not admissible as third party culpability evidence, was, nonetheless, wrongfully excluded because it was exculpatory. Id., 262. In the present case, however, the prior stabbing evidence was not exculpatory. It did not make more likely a finding that because Anderson had been stabbed five years earlier, the defendant did not stab Anderson on August 7, 2009. See State v. West, supra, 274 Conn. 624-25. Accordingly, the facts in Cerreta readily are distinguishable.

We, therefore, conclude that the evidence was properly excluded by the court on the ground of relevancy. The court did not abuse its discretion, nor does it appear that any injustice was done.

II

We next address the defendant’s claim that there was insufficient evidence as to the identity of the perpetrator because the state failed to support the identification by forensic evidence, thereby failing to prove this essential element of the crimes. We reject this claim.

The defendant argues that there was no DNA (deoxyribonucleic acid) testing of blood from the scene, despite the fact that during the first fight with Anderson, she bled after having been hit by Anderson’s belt buckle. She contends that the police never tested Anderson’s blood-soaked shirt, which they had seized as evidence. We conclude that such forensic evidence was not necessary to establish the identity of the perpetrator in this case.

It is clear that evidence may suffice although it comes from only one witness. State v. Caracoglia, 95 Conn. App. 95, 128, 895 A.2d 810, cert. denied, 278 Conn. 922, 901 A.2d 1222 (2006). In the present case, however, there were two witnesses. Both Anderson and her sister, Porter, testified that it was the defendant who stabbed Anderson. Where identification testimony could be believed by jurors, there is no rule of law that requires that it be buttressed by forensic DNA evidence to suffice to prove that it was the defendant who committed the criminal acts.

Ill

We finally address the defendant’s claim that the evidence was insufficient to establish that the defendant was the person who stabbed Anderson. We disagree.

Although the defendant did not preserve her claim at trial, all sufficiency of evidence claims are reviewable on appeal because such claims implicate a defendant’s federal constitutional right not to be convicted of a crime on insufficient proof. State v. Laws, 37 Conn. App. 276, 287, 655 A.2d 1131, cert. denied, 234 Conn. 907, 659 A.2d 1210 (1995); see Jackson v. Virginia, 443 U.S. 307, 316-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).

It is always the state’s burden to show that it was the defendant, and not some other person, who committed the crime or crimes charged. State v. Smith, supra, 280 Conn. 302. In her brief, the defendant focuses on the element of identity, and we, therefore, direct our review to that issue. “In accordance with well established principles, appellate analysis of a claim of insufficiency of the evidence requires us to undertake a twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt . . . .” (Internal quotation marks omitted.) State v. Pommer, 110 Conn. App. 608, 613, 955 A.2d 637, cert. denied, 289 Conn. 951, 961 A.2d 418 (2008); see also State v. Hayward, 116 Conn. App. 511, 515, 976 A.2d 791, cert. denied, 293 Conn. 934, 981 A.2d 1077 (2009).

A review of the defendant’s argument leads us to conclude that her challenges go to the credibility of the state’s principal identification witnesses rather than to the sufficiency of the evidence. See State v. Hall, 120 Conn. App. 191, 198, 991 A.2d 598, cert. denied, 297 Conn. 903, 994 A.2d 1288 (2010). A determination regarding the credibility of witnesses, however, is a function of the jury. “In assessing the evidence at trial, it is the jury’s role as the sole trier of the facts to weigh the conflicting evidence and to determine the credibility of witnesses. ... It is the right and duty of the jury to determine whether to accept or to reject the testimony of a witness . . . and what weight, if any, to lend to the testimony of a witness and the evidence presented at trial.” (Internal quotation marks omitted.) Id. In this case, the identification evidence, if believed, was sufficient to establish that the defendant, and not some other person, committed the crimes.

Both identification witnesses knew what the defendant looked like before the knife assault, and they had no difficulty in identifying the defendant. Porter gave a general description of her sister’s assailant to Detective John Term at the crime scene. She revealed that the assailant was a black woman with a husky build and dreadlocks. Porter also identified the defendant as her sister’s assailant in image number seven of the first screen of sixty-seven potential candidates she could have viewed in the electronic photographic array. See footnote 3 of this opinion. The stabbing was temporally close in time to the first fight between Anderson and the defendant, which had occurred approximately twenty minutes earlier. The defendant’s dreadlocks and particular way of walking confirmed the identification. In short, all of this evidence sufficed to identify the defendant as the person who had stabbed Anderson five times on the night of August 7, 2009.

The defendant attacks the testimony of both Anderson and Porter identifying the defendant as the person who committed the stabbing. She argues that the evidentiary record indicates that both Anderson and Porter at first thought the assailant was a male. The following inquiry on direct examination of Anderson explains how that happened:

“Q. Can you tell the jury what happened when you came out onto Shell Street as you [were] walking home that night?
“A. When I came out on Shell Street, I seen somebody walkin’ towards me. At first I wasn’t sure who it was because they — she had a gray and black hoodie on, so I thought it was a man walkin’ down towards Shell Street. So, I go — I’m walkin’ towards my [mother’s] house and their house, to tell them about the story and everything, about the situation—
* * *
“Q. Okay, just want to make sure, and where were you? Can you tell us, Ms. Anderson, where were you when you first saw a person approaching you that you believed was a man?
“A. As soon as I hit the sidewalk, like I said, I’m crossin’ the field, as soon as I hit the sidewalk, I seen somebody.
“Q. Which direction was that person walking from?
“A. My direction, cornin’ towards me.
“Q. So, the opposite direction.
“A. Exactly.
“Q. How was the person dressed?
“A. In a black and striped hoodie, like stripes, black on one side, gray, black, and gray stripe hoodie.
“Q. And what happened as that person and you approached, what happened?
“A. I recognized that it was Tyronesha Miles.
“Q. Now, how — can you explain to the jury, how did you recognize that it was Tyronesha Miles?
“A. By her hair.
“Q. Okay, anything else about her appearance.
“A. Manner of walk, after a while. At first, like I said, I thought it was a man at first ‘cause she changed her clothes, then as soon as I seen her dreads and everything and her coming towards me, I knew who it was.”

It is clear from a reading of the testimony that Anderson’s version of events was that the defendant had changed her clothes and put on a hooded jacket, which caused the defendant to be mistaken for a male initially, but who then was recognized as the female defendant when she approached further. Anderson explained that the defendant was recognizable by her dreadlocked hair and the manner in which she walked. Clearly, the jury was free to credit this testimony.

Additionally, we note that Anderson quickly identified the defendant as her attacker from a photographic array prepared by the police. Further, Porter explained that when she heard Anderson scream that she was being stabbed, she ran down the stairs from her home, and, as she got closer to the crime scene, she recognized the defendant as the peipetrator. Porter explained that when she got closer to the defendant, she recognized her from the first fight but that the defendant had changed her clothes and put on a hooded sweatshirt. Again, the jury was free to credit the testimony of both Anderson and Porter and their explanation as to why they each first thought that the defendant was a man when they saw her with a hood obscuring her face.

Although the defendant points out that there was contradictory testimony from King, the jury was not required to credit this testimony. King, who described herself as being in a “relationship” with the defendant, testified that a hooded man had passed her and said, “what’s going on, sexy.” King further stated that sometime thereafter she saw that man approach Anderson, strike her repeatedly, and run off after Anderson collapsed to the ground. Conflicting testimony and the credibility of witnesses is a matter left to the province of the jury. See State v. Hall, supra, 120 Conn. App. 198. The defendant’s attempt to have this court make credibility determinations is unavailing.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note that three figures in the evidence have similar first names. Ail are referred to in the record by the nickname “Ty.” The defendant is named Tyronesha, and Anderson’s sister is named Taiwan. The defendant’s girlfriend is Tameka King. It is clear from the evidentiary context that Anderson was not accusing her sister and that Ty was a nickname, used by Anderson, for Tyronesha Miles, the defendant. It is also clear that Anderson was not referring to Tameka King as her assailant by her use of the nickname “Ty” because Anderson’s testimony placed King away from the specific stabbing fight on a nearby comer immediately prior to the stabbing. Finally, Anderson did not know King’s name prior to the stabbing, although she knew her from the neighborhood.

       Porter, Anderson’s sister, testified that she witnessed from her front porch the defendant coming back to fight Anderson. Porter concluded that the defendant was wielding a knife due to “the shining and gleaming . . . from the reflection of the [streetlights].” She also heard Anderson exclaim, “she’s tryin’ to stab me,” and, “she stabbed me.”

       We recognize that there are cases where misidentification has occurred and injustice has resulted. See State v. Tillman, 220 Conn. 487, 500, 600 A.2d 738 (1991) (conviction affirmed holding defendant could not prevail on challenge to trial court’s failure to charge on identification testimony credibility that the jury “may consider . . . whether the witness was physically impaired or under stress when observing the perpetrator” [internal quotation marks omitted]), cert. denied, 505 U.S. 1207,112 S. Ct. 3000,120 L. Ed. 2d 876 (1992); see Special Acts 2007, No. 07-5, § 1, “An Act Compensating James C. Tillman for his Wrongful Conviction and Incarceration” (compensating Tillman $5 million for wrongful arrest, prosecution, conviction and incarceration on charges of kidnapping and sexual assault which charges were dismissed on July 11, 2006). Conviction of the innocent is unjust because it punishes the blameless while the guilty remain free. That is not this case, however. After Anderson and Porter had identified the defendant as Anderson’s assailant, Anderson and Porter were later shown photographic arrays at different times after the stabbing. After foundations were laid for admission of the photographic array, the state offered the full array shown to Anderson, which was admitted without objection. The state offered only one photograph for the identification made by Porter. The state had offered evidence, that, with respect to Porter’s identification, details of her description of the color, age and height of the person supplied by Porter were entered into the police data system along with the nickname, “Ty.” That system generated eight photos for viewing that matched that description, and fifty-nine additional photos would follow if no identification were made of the first eight. Only the photograph identified by Porter from the electronic array came into evidence, and that, too, was admitted without objection.