author: HARPER, J.

text:
    JONATHAN M. KELLER ET AL. v. ROZ-LYNN BECKENSTEIN, EXECUTRIX (ESTATE OF ROBERT J. BECKENSTEIN)
    (AC 30436)
    DiPentima, Harper and Lavine, Js.

      Argued December 7, 2009
    officially released July 13, 2010

      Richard P. Weinstein, with whom was Nathan A. Schatz, for the appellants (plaintiffs).

      Michael P. Berman, with whom was Suzanne LaPlante, for the appellee (defendant).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

HARPER, J.

The plaintiffs Jonathan M. Keller and a group of business entities (collectively, the Keller group) appeal from the judgment of the trial court granting the motion of the defendant, Roz-Lynn Beckenstein, in her capacity as executrix of the estate of Robert J. Beckenstein, to dismiss the Keller group’s complaint sounding in vexatious litigation as unripe for adjudication. We conclude that the court correctly determined that the Keller group’s action was not ripe for adjudication at the time the action was commenced. Due to events that have occurred during the pendency of the Keller group’s appeal, however, there is now a question as to whether the Keller group’s claim is still not ripe for adjudication on the grounds relied on by the court. Accordingly, we vacate the judgment of the trial court and remand the case with direction to reconsider the motion to dismiss and to proceed in accordance with law.

The procedural history reveals that the parties have been involved in various litigation for a number of years. Previously, entities associated with the defendant (Beckenstein group) sued the Keller group, alleging tortious interference with contractual relations. That action was tried to a jury, which returned a verdict in favor of the Keller group. The Beckenstein group appealed from that judgment to this court, the Keller group again prevailed, and our Supreme Court declined to review the decision of this court. Beckenstein Enterprises-Prestige Park, LLC v. Keller, 115 Conn. App. 680, 974 A.2d 764, cert. denied, 293 Conn. 916, 979 A.2d 488 (2009).

On April 27, 2007, the Keller group filed a complaint against, inter alios, the defendant in which it sought damages for vexatious litigation stemming from Beckenstein Enterprises-Prestige Park, LLC v. Keller, supra, 115 Conn. App. 680. The trial court concluded that, because the Beckenstein group’s appeal in that case was still pending before this court, the underlying allegedly vexatious litigation had not yet terminated in the Keller group’s favor and its claim was not ripe for adjudication. Accordingly, the court dismissed the Keller group’s action for lack of subject matter jurisdiction. The Keller group took no appeal from the court’s judgment of dismissal.

On April 11, 2008, while Beckenstein Enterprises-Prestige Park, LLC v. Keller, supra, 115 Conn. App. 680, was still pending before this court, the Keller group filed a new action in the Superior Court. The Keller group once again sought damages for vexatious litigation stemming from Beckenstein Enterprises-Prestige Park, LLC v. Keller, supra, 115 Conn. App. 680. In its complaint, the Keller group alleged that it had filed a notice of claim with the estate of Robert J. Beckenstein in the West Hartford Probate Court regarding the allegedly vexatious nature of Beckenstein Enterprises-Prestige Park, LLC v. Keller, supra, 115 Conn. App. 680. The Keller group asserted that this claim was rejected by the defendant on January 9, 2008. The Keller group argued that a statute of limitation contained in General Statutes § 45a-363 required it to either file suit in Superior Court within 120 days of the defendant’s rejection of its claim or risk being time barred from seeking relief.

On May 15, 2008, the Keller group requested that the Superior Court stay its action until such time as Beckenstein Enterprises-Prestige Park, LLC v. Keller, supra, 115 Conn. App. 680, was decided by this court. On May 22,2008, the defendant filed a motion to dismiss the Keller group’s action. On September 30, 2008, the court granted the motion to dismiss. The court concluded that the statutory limitation on the time period in which a plaintiff may pursue a claim in the Superior Court following a rejection of such claim by an estate “[does not imbue] [the Superior Court] with jurisdiction it does not otherwise have.” As such, because Beckenstein Enterprises-Prestige Park, LLC v. Keller, supra, 115 Conn. App. 680, still had not been decided by this court, the trial court determined that the matter was not ripe for adjudication. Accordingly, the court once again concluded that it lacked subject matter jurisdiction over the Keller group’s claims. It is from this judgment of dismissal that the Keller group now appeals.

On appeal, the Keller group claims that the court improperly granted the defendant’s motion to dismiss. We disagree. The court correctly determined that, as of the time of its ruling, the Keller group’s claim was not ripe for adjudication. We are unable, however, to grant the defendant her requested relief, namely, affirmance of the trial court’s judgment, because it appears that the Beckenstein group has exhausted its appeals in Beckenstein Enterprises-Prestige Park, LLC v. Keller, supra, 115 Conn. App. 680. Accordingly, there is a question as to whether the Keller group’s claim is still not ripe for adjudication on the basis relied on by the court.

I

We first address the court’s determination that it lacked subject matter jurisdiction over the Keller group’s action because its claims were not yet ripe for adjudication. We conclude that, given the situation existing at the time of the court’s determination, the court properly ruled that the Keller group’s claims were not ripe and that it therefore lacked jurisdiction over the matter.

We begin by setting forth our standard of review. “A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. . . . [0]ur review of the trial court’s ultimate legal conclusion and resulting [denial] of the motion to dismiss will be de novo.” (Internal quotation marks omitted.) Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010). “A motion to dismiss tests . . . whether, on the face of the record, the court is without jurisdiction. . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.” (Internal quotation marks omitted.) State v. Marsh & McClennan Cos., 286 Conn. 454, 463-64, 944 A.2d 315 (2008). “Ripeness is a justiciability doctrine, which implicates the court’s subject matter jurisdiction.” Bloom v. Miklovich, 111 Conn. App. 323, 336, 958 A.2d 1283 (2008). Accordingly, our review is plenary, and we must decide whether the trial court’s conclusions were legally and logically correct and find support in the facts that appear in the record. See id.

As the defendant and the trial court correctly note, the rationale of the ripeness doctrine is “to prevent courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements . . . .” (Internal quotation marks omitted.) Nizzardo v. State Traffic Commission, 259 Conn. 131, 144, 788 A.2d 1158 (2002). Thus, a court must be satisfied that the case before it “does not present a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire.” Milford Power Co., LLC v. Alstom Power, Inc., 263 Conn. 616, 626, 822 A.2d 196 (2003). The requirements for maintaining a suit for vexatious litigation are well established. “A vexatious suit is a type of malicious prosecution action, differing principally in that it is based upon a prior civil action, whereas a malicious prosecution suit ordinarily implies a prior criminal complaint. To establish either cause of action, it is necessary to prove want of probable cause, malice and a termination of suit in the plaintiffs favor.” (Emphasis added.) Vandersluis v. Weil, 176 Corm. 353, 356, 407 A.2d 982 (1978). Thus, for a vexatious litigation claim to be ripe for adjudication, the party must allege, among other facts, that the allegedly vexatious litigation has terminated in its favor. Cf. id.

It is uncontested that, at the time the Keller group initiated its action for vexatious litigation against the defendant, the underlying litigation on which its claim was founded, having been appealed to this court by the Beckenstein group, had yet to terminate in the Keller group’s favor. Indeed, the Keller group concedes that “the usual application of the ‘ripeness’ doctrine will lead to the conclusion that a court lacks subject matter jurisdiction over a ‘premature’ claim.” The Keller group, however, posits that the court should have ruled that it was able to overcome this jurisdictional deficiency because “suit upon a claim that has been rejected by the fiduciary of an estate is expressly authorized by General Statutes § 45a-363.” Section 45a-363 (b) provides in relevant part: “Unless a person whose claim [against a decedent] has been rejected (1) commences suit within one hundred twenty days from the date of the rejection of his claim, in whole or in part ... he shall be barred from asserting or recovering on such claim from the fiduciary, the estate of the decedent or any creditor or beneficiary of the estate, except for such part as has not been rejected. . . .” The Keller group argues that “because the defendant rejected the claim [of the Keller group] on January 9, 2008, the [Keller group is] authorized by [§ 45a-363 (b)] to bring suit upon the rejected claim.” We disagree.

This court has held that “[t]he purpose of [§ 45a-363] is to encourage the timely settlement of decedents’ estates. [Section] 45a-363 is purely procedural in nature, governing the time within which to file a suit against an estate when a claim has been rejected by an executor or administrator.” (Emphasis added; internal quotation marks omitted.) Kubish v. Zega, 61 Conn. App. 608, 620, 767 A.2d 148, cert. denied, 255 Conn. 949, 769 A.2d 62 (2001). The Keller group’s argument, therefore, fails because § 45a-363 only sets a procedural limit on the time in which a party may pursue a cause of action stemming from a claim that was rejected by an estate; the statute does not independently create a cause of action or confer jurisdiction on the Superior Court and, therefore, does not obviate the need for a plaintiff to plead a recognized cause of action over which the court has jurisdiction. In other words, an estate’s rejection of a party’s claim does not create a cause of action on which a plaintiff may proceed in the Superior Court. Section 45a-363 (b) simply limits the period of time in which a plaintiff may pursue a cause of action over which the Superior Court would otherwise have jurisdiction. Accordingly, the court properly granted the defendant’s motion to dismiss.

II

Typically, having concluded that the court properly determined that it lacked subject matter jurisdiction over the matter, we simply would affirm the judgment of the court. A case decided by our Supreme Court, however, instructs us that in reviewing the ripeness of a claim we must evaluate the situation as it stands now, not at the time the matter was before the trial court. In Labbe v. Pension Commission, 239 Conn. 168, 682 A.2d 490 (1996), a group of police officers brought an action against the city of Hartford and its pension commission to enj oin them from denying the plaintiffs credit for their military service in calculating pension benefits. The city and the commission argued that the appeal against them by one of the plaintiffs, Eddie M. Rivera, should have been dismissed because, at the time the complaint was filed, he was not eligible to retire. Id., 184. Although the Supreme Court agreed that there was a question as to whether Rivera’s claim was ripe at the time his action was filed, it concluded that because “ripeness is peculiarly a question of timing, it is the situation now rather than the situation at the time of the . . . decision [under review] that must govern.” (Internal quotation marks omitted.) Id. Accordingly, the court concluded that because Rivera’s pension benefits had vested during the pendency of the appeal, meaning that he had served long enough to be eligible to receive pension benefits, his claim was ripe for adjudication and evaluated it on its merits. Id., 184-85.

In the present case, during the interval between the trial court’s dismissal of the Keller group’s complaint and oral argument before this court, certain events transpired that directly affect the ripeness of the Keller group’s claim. On October 24, 2008, Beckenstein Enterprises-Prestige Park, LLC v. Keller, supra, 115 Conn. App. 680, the underlying allegedly vexatious litigation, was argued before the Appellate Court. We take judicial notice that on July 21, 2009, the Appellate Court affirmed the judgment in favor of the Keller group; Beckenstein Enterprises-Prestige Park, LLC v. Keller, supra, 683; and our Supreme Court has declined to review that decision. Beckenstein Enterprises-Prestige Park, LLC v. Keller, 293 Conn. 916, 979 A.2d 488 (2009).

We see no reason not to follow the rule, set forth in Labbe, that it is the situation now rather than the situation at the time the matter was before the trial court that must govern our review of the ripeness of a claim. In Labbe, at the time Rivera filed his action, there was a chance that his pension benefits would never vest. Because, however, his pension benefits had vested by the time the case was appealed, the court ruled that his claim was ripe for review. Labbe v. Pension Commission, supra, 239 Conn. 185. Likewise, in the present case, at the time of the trial court’s ruling, there was a chance that the underlying allegedly vexatious litigation, having been appealed, would never terminate in favor of the Keller group. Now that the Beckenstein group has exhausted its appeals of the trial court’s judgment in Beckenstein Enterprises-Prestige Park, LLC v. Keller, there is a question as to whether the Keller group’s complaint is still unripe for adjudication on the grounds relied on by the court in its decision dismissing the complaint.

The judgment is vacated and the case is remanded with direction to reconsider the defendant’s motion to dismiss and for further proceedings according to law.

In this opinion the other judges concurred.

       In addition to Keller, the plaintiffs include Fremont Group, LLC; Fremont 155, LLC; Fremont 131, LLC; Fremont 183, LLC; Fremont Riverview, LLC; Fremont Prestige Park, LLC; and 654 Tolland Street, LLC.

       The Beckenstein group consists of Beckenstein Enterprises-Prestige Park, LLC; 155 Realty; Riverview Square, LLC; Riverview Square II, LLC; and Tolland Enterprises.

       General Statutes § 45a-363 (b) provides in relevant part: “Unless a person whose claim [against a decedent] has been rejected (1) commences suit within one hundred twenty days from the date of the rejection of his claim, in whole or in part ... he shall be barred from asserting or recovering on such claim from the fiduciary, the estate of the decedent or any creditor or beneficiary of the estate, except for such part as has not been rejected. . . .” (Emphasis added.)

       The Keller group claims, in the alternative, that the court should have granted its motion for a stay and awaited the outcome of the Beckenstein group’s appeal in Beckenstein Enterprises-Prestige Park, LLC v. Keller, supra, 115 Conn. App. 680. The Keller group argues that this would have been the proper course of action because, had it waited to file its vexatious lawsuit until the determination of the Beckenstein group’s appeal, it would have exceeded the 120 day time limit set forth in § 45a-363 (b). This being the case, the Keller group claims, the court should have stayed determination of its subject matter jurisdiction until the final resolution of Beckenstein Enterprises-Prestige Park, LLC v. Keller, supra, 115 Conn. App. 680. We disagree.
      “Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction. ... As a result, [a] trial court [is] required to address [a] jurisdictional challenge before ruling on other motions and, once it [decides] that it [lacks] subject matter jurisdiction, it [is] bound and required to dismiss the [claim at issue].” (Internal quotation marks omitted.) Sosin v. Scinto, 57 Conn. App. 581, 588, 750 A.2d 478 (2000). Accordingly, the court could not have addressed the Keller group’s motion for a stay, as it properly had determined that it had no jurisdiction over the matter.


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    UTICA MUTUAL INSURANCE COMPANY v. PRECISION MECHANICAL SERVICES, INC.
    (AC 30676)
    DiPentima, Robinson and Hennessy, Js

      Argued March 16
    officially released July 13, 2010

      Frederic S. Ury, with whom, on the brief, were Neal L. Moskow and Deborah M. Garskof for the appellant (defendant).

      Frank F. Coulom, Jr., for the appellee (plaintiff).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

HENNESSY, J.

In this negligence action, the defendant, Precision Mechanical Services, Inc., appeals from the judgment of the trial court, rendered after a trial to the court, in favor of the plaintiff, Utica Mutual Insurance Company. The court found that the defendant was negligent and awarded the plaintiff damages in the amount of $664,373.02, plus interest at 6 percent from July 9, 1997, when the plaintiff received a subrogation receipt. On appeal, the defendant claims that the court improperly (1) concluded that the plaintiff established the applicable standard of care in the absence of expert testimony, (2) granted the plaintiffs motions in limine to preclude the defendant’s expert witnesses from testifying and (3) concluded that the plaintiff established its damages to a reasonable degree of certainty under the circumstances. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history that are relevant to our resolution of the defendant’s appeal. On August 9, 1996, Kirk Holmes, an employee of the defendant, was sent to the Commons Condominium Complex (Commons) in Branford to install a shower diverter in unit 10C. Holmes was a licensed plumber at the time of the project, having earned his license in the late 1980s or early 1990s, and had performed shower diverter replacements prior to his job at the Commons.

Holmes was alone in the unit when he began working. In order to complete the job, he was required to first remove the existing faucet valves before replacing them with the shower diverter that contained only a single valve. To allow access to the pipes in the wall cavity, he widened a hole in the shower wall that was located below waist level. The widened hole’s new dimensions were approximately thirteen inches by six to seven inches.

Aware that the water in the building had been shut off earlier, Holmes opened the faucets and drained any residual water left in the pipes. Next, he cut the hot and cold water lines, as well as the lead to the shower head, to allow him freely to remove the old diverter. To install the shower diverter, he needed to use a plumber’s torch that had a two inch flame to solder the hot water connection, the cold water connection and the lead to the new diverter.

Before Holmes began soldering, he got on his knees, reached his arms through the hole, grabbed paper-backed insulation and pulled it out through the hole. Holmes wanted the area in which he was going to solder to be clear of insulation because he was aware that it was combustible material. Given the hole’s placement below waist level and his consequent inability to look up into the wall, however, Holmes could not make a complete inspection of the wall cavity. Although he testified that he checked for insulation with his flashlight, he did not use his mirror to confirm the absence of insulation in areas he could not see and did not feel or remove any insulation below the valve. In fact, Holmes testified, insulation was probably left behind in the wall regardless of his removal efforts. Despite his awareness that the insulation in the wall was combustible, he began soldering.

A short time later, he noticed a glow on the diverter in the wall above him. Holmes testified that in response, he sprayed his fire extinguisher through the hole and into the wall. He next punched a hole in the wall at the ceiling level where he observed the insulation on fire. Because the fire had already spread to the next floor, he called 911 and ran upstairs and notified the occupants to get out of the building.

The plaintiff filed a complaint on July 24, 1998, alleging that the defendant was negligent in failing (1) to exercise reasonable care when operating the plumber’s torch, (2) to take reasonable precautions to protect against the ignition of combustible materials in the area where the welding operations occurred and (3) to comply with the applicable codes or standards in using the torch. The plaintiff alleged that the resulting damage to the Commons was caused by the defendant’s failure to perform its services in a reasonable and workmanlike manner. Because the plaintiff insured the Commons for the loss caused by the fire, it was subrogated to the Common’s rights. In its answer filed on March 17,1999, the defendant denied the negligence claim but did not raise any special defenses.

On October 30, 2007, the plaintiff filed motions to preclude the defendant from offering the expert testimony of Kevin Wypychoski, the defendant’s president and chief executive officer, and Harwood W. Loomis, an architect licensed in Connecticut with a consulting practice in building codes, who had issued a report. Before the trial commenced, the court granted the plaintiffs motion in limine with regard to Wypychoski, concluding that he could, however, testify as a fact witness. The court allowed the testimony of Loomis, subject to the plaintiff’s renewing its motion at the close of evidence but ultimately granted the plaintiff’s motion and, thus, did not consider Loomis’ testimony in arriving at a decision. The trial occurred over three days—from October 31 to November 2, 2007. The following people testified: Peter Buonome, a marshal with the Branford fire department; Holmes; Kenneth Wheeler, a claims adjuster representing the plaintiff; Donald McCarthy, a president of the Commons at the time of the fire; and Loomis.

The court issued its memorandum of decision on August 12, 2008. In its decision, the court concluded that the plaintiff paid $664,373.02 to the Commons to cover its loss from the fire and that this was a fair and reasonable amount for which the plaintiff received a subrogation receipt. The court rejected as without merit the defendant’s argument that the damages amount was a mere approximation. After providing its reasoning for precluding Loomis’ expert testimony, the court then went on to determine, on the basis of the evidence adduced at trial, that “the defendant was negligent in one or more of the following respects in that Holmes, the employee of the defendant, was negligent in that he failed to exercise reasonable care in operating the welding torch and in that he failed to protect against ignition of the combustible materials in the area where he was welding. Holmes should have ensured that all of the insulation was removed before he started to solder. The court concludes that the defendant’s employee was the proximate cause of the fire. The court, therefore, awards judgment in favor of the plaintiff to recover the sum of $664,373.02 plus interest at 6 [percent] from the date of July 9, 1997, when [the plaintiff] received the subrogation receipt.” In turn, the defendant filed the present appeal. Additional facts will be set forth as necessary.

I

The defendant first claims that the plaintiffs failure to present expert testimony at trial establishing the appropriate standard of care of a professional plumber under similar circumstances requires reversal. More specifically, the defendant argues that the replacement of shower diverters and the soldering of pipes is a matter outside of the common layperson’s knowledge and, consequently, expert testimony was required to establish the appropriate standard of care owed by Holmes. We are not persuaded by the defendant’s arguments.

We begin by setting forth the relevant parameters under our negligence jurisprudence. “The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury. . . . Contained within that first element, duty, there are two distinct considerations. . . . First, it is necessary to determine the existence of a duty, and [second], if one is found, it is necessary to evaluate the scope of that duty. . . . We sometimes refer to the scope of that duty as the requisite standard of care.” (Citations omitted; internal quotation marks omitted.) LePage v. Horne, 262 Conn. 116, 123, 809 A.2d 505 (2002).

The court’s determination of whether expert testimony was needed to support the plaintiffs claim of negligence against the defendant was a legal determination, and, thus, our review is plenary. See Neff v. Johnson Memorial Hospital, 93 Conn. App. 534, 541, 889 A.2d 921 (2006). In a negligence action such as the one brought by the plaintiff in this case, expert testimony will be required “[i]f the determination of the standard of care requires knowledge that is beyond the experience of a normal fact finder . . . .” (Internal quotation marks omitted.) Keeney v. Mystic Valley Hunt Club, Inc., 93 Conn. App. 368, 375, 889 A.2d 829 (2006). “The requirement of expert testimony . . . serves to assist lay people, such as members of the jury and the presiding judge, to understand the applicable standard of care and to evaluate the defendant’s actions in light of that standard.” (Internal quotation marks omitted.) Ahern v. Fuss & O’Neill, Inc., 78 Conn. App. 202, 208-209, 826 A.2d 1224, cert. denied, 266 Conn. 903, 832 A.2d 64 (2003).

Nevertheless, “[although expert testimony may be admissible in many instances, it is required only when the question involved goes beyond the field of the ordinary knowledge and experience of the trier of fact. . . . The trier of fact need not close its eyes to matters of common knowledge solely because the evidence includes no expert testimony on those matters.” (Citations omitted; internal quotation marks omitted.) State v. Padua, 273 Conn. 138, 149, 869 A.2d 192 (2005). Rather, “[j]urors [and courts] are not expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct.” Id., 157.

In this case, Holmes testified at trial that in order to complete the work in a safe and workmanlike manner, it was necessary to remove all combustible materials from the vicinity of the plumber’s torch. More specifically, he testified that a plumber would violate the standard of care if a torch was used within the immediate vicinity of paperbacked insulation. He also testified that the fire would not have occurred if he had not been soldering. On the basis of the evidence at trial, the court found that it was clear that the fire started as a result of soldering caused by the plumber’s torch.

We conclude, as the court did, that the standard of care at issue in this case is whether Holmes was negligent in failing to exercise reasonable care in operating the plumber’s torch in the vicinity of combustible materials. Contrary to the defendant’s argument, the issue did not entail the technical skills required to replace shower diverters and the soldering of pipes. Because the question of whether a reasonable person should operate a torch within the vicinity of combustible materials does not go beyond the field of the ordinary knowledge and experience of the trier of fact, we hold that expert testimony was not required to determine if the defendant’s performance complied with the requisite standard of care.

We note also that our Supreme Court has determined that a plaintiff may prove the standard of care through the testimony of a defendant. LePage v. Horne, supra, 262 Conn. 132. As an expert witness, the defendant is “not required specifically to have expressed as an opinion that [she] breached the standard of care in order for the [plaintiff] to prevail. . . . Rather, the [plaintiff] need only have produced sufficient expert testimony to permit the [court] reasonably to infer, on the basis of its findings of fact, that [the defendant] breached the standard of care.” (Internal quotation marks omitted.) Id. Here, Holmes, a licensed plumber in Connecticut who has worked as a plumber for years, testified that a plumber would violate the standard of care if a torch was used within the immediate vicinity of paperbacked insulation. Thus, even though we have determined that the standard of care owed by Holmes did not go beyond the ordinary knowledge and experience of the trier of fact, the plaintiff nonetheless produced sufficient expert testimony at trial through the testimony of Holmes.

n

The defendant next claims that the court improperly granted the plaintiffs motion to preclude the defendant’s expert witnesses, Loomis and Wypychoski, from testifying at trial. We disagree.

Before addressing these claims, we note the applicable standard of review. “The decision to preclude a party from introducing expert testimony is within the discretion of the trial court. . . . On appeal, that decision is subject only to the test of abuse of discretion.” (Citation omitted; internal quotation marks omitted.) Amsden v. Fischer, 62 Conn. App. 323, 325-26, 771 A.2d 233 (2001). “The determinative question for an appellate court is not whether it would have imposed a similar sanction, but whether the trial court could reasonably conclude as it did given the facts presented.” (Internal quotation marks omitted.) Bourquin v. B. Braun Melsungen, 40 Conn. App. 302, 306, 670 A.2d 1322, cert. denied, 237 Conn. 909, 675 A.2d 456 (1996).

A

The plaintiff filed its motion to preclude the defendant from offering the expert testimony of Loomis in support of the defendant’s allegation that preexisting conditions at the Commons, specifically the lack of fire stops, contributed to the spread of the fire. As stated in Loomis’ report, which was admitted as an exhibit, the puipose of his investigation was to determine whether violations or departures from building and fire safety code requirements might have contributed to the spread of the fire. Although the court allowed Loomis to testify at trial, ultimately the court decided not to consider his testimony in resolving the plaintiffs claim.

In its memorandum of decision, the court noted that the defendant did not plead a special defense or counterclaim bringing to the plaintiffs attention the defendant’s argument that a preexisting condition at the Commons contributed to the spread of the fire. Essentially, the court determined that it was the defendant’s intention to use the testimony of Loomis to establish a reduction in damages because the Commons was responsible, in part, for the spread of the fire. The court then went on to highlight again that the defendant had not pleaded such a contention. Furthermore, the court found that no evidence had been introduced by the defendant to support a claim of diminishment. As a result, the court found that it was “not permitted to consider any testimony by Loomis or any evidence of fire spread presented by [the] defendant, and the court must presume that the [Commons] acted with reasonable care . . . .”

On appeal, the defendant argues that because it pleaded a general denial of the plaintiffs claim, it was not necessary to plead as a special defense that the building was not in compliance with the applicable code. Thus, the defendant argues that in order for the court to fairly evaluate the defendant’s denial of liability, it was incumbent on the court to consider Loomis’ expert testimony.

In support of its argument, the defendant relies on Pawlinski v. Allstate Ins. Co., 165 Conn. 1, 6, 327 A.2d 583 (1973), which states: “The issues to be tried may be framed in several ways. A denial of a material fact places in dispute the existence of that fact. Even under a denial, a party generally may introduce affirmative evidence tending to establish a set of facts inconsistent with the existence of the disputed fact. ... If, however, a party seeks the admission of evidence which is consistent with a prima facie case, but nevertheless would tend to destroy the cause of action, the ‘new matter’ must be affirmatively pleaded as a special defense.” (Citations omitted.) Under this precedent, the defendant contends that Loomis’ testimony establishing that the building did not comply with the applicable building code does not itself negate liability but, rather, is an additional or contributing cause to the spread of fire. As such, the defendant argues that had the court considered Loomis’ testimony, the ultimate judgment for the full amount of damages could not have resulted.

We are not persuaded. One of the overarching tenets of Pawlinski is that “[t]he purpose of pleading is to apprise the court and opposing counsel of the issues to be tried, not to conceal basic issues until the trial is under way.” (Internal quotation marks omitted.) Id. In Pawlinski, the plaintiff brought an action to enforce an agreement, and an endorsement was introduced in evidence to prove the terms of that agreement. Id., 7. Our Supreme Court concluded that “[t]o require a defendant to plead a special defense in order to attack the probative force of such an exhibit would border on the ludicrous.” Id. Consequently, the court held that the defendant’s evidence was properly admitted because it sought to prove facts that were inconsistent with the plaintiffs express allegation that the defendant was liable. Id., 8.

Here, the defendant is not arguing that Loomis’ testimony would provide facts that directly are inconsistent with the plaintiffs allegations. In his report, Loomis concluded that the “immediate cause of the fire was contact between the flame from a plumber’s torch and the combustible vapor barrier facing of thermal insulation within the partition where the mechanic was working.” Conversely, the gravamen of the defendant’s argument is that the extent of its liability should be mitigated due to the contributory or comparative negligence of the Commons. The plaintiff framed the purpose of Loomis’ testimony as grounded in contributory negligence—an argument the defendant never refuted at trial—and the court characterized it in the same manner as well. The defendant, in the damages discussion of its appellate brief, states: “The failure to prove damages is significant, particularly when coupled with the failure to proffer expert testimony and the failure to account for the [Common’s] contributory negligence.” (Emphasis added.) Thus, the defendant sought to introduce Loomis’ testimony at trial in support of an argument that sounded in contributory negligence.

“General Statutes § 52-114 explicitly states that there is a presumption that the plaintiff in a negligence action was exercising reasonable care at the time of injury, and that the defendant must specially plead contributory negligence. The statute allocates the burden of proof of contributory negligence to the defendant once it has been specially pleaded.” Sady v. Liberty Mutual Ins. Co., 29 Conn. App. 552, 556, 616 A.2d 819 (1992). In the present case, the defendant did not plead contributory negligence, so the plaintiff had no burden under the law to prove that the Commons exercised reasonable care; it was presumed. Id., 556-57.

We conclude that the court did not abuse its discretion in not considering Loomis’ testimony. The defendant did not plead contributory negligence as required by statute and the rules of practice, it did not establish that the Commons had knowledge of the building’s lack of fire stops or that the Commons even owned the building when it was constructed and it did not offer any evidence as to how much of its liability should be lessened, given the building’s alleged lack of compliance with the building code. After allowing Loomis to testify, the court then reasonably concluded that it should not consider his testimony or any evidence that the fire spread due to an alleged lack of fire stops, given the defendant’s failure to apprise the plaintiff of its claim through an affirmative pleading.

B

With regard to the plaintiffs motion to preclude Wypychoski from testifying as an expert, again the defendant maintains on appeal that a “fundamental piece of the plaintiffs case was missing [because] there was no expert testimony proffered on the issue of how the defendant breached the standard of care for a professional plumber.” According to the defendant, the “trial court’s failure to hold the plaintiff accountable for this omission was compounded by the refusal to allow Wypychoski to testify as an expert in this case.” The defendant argues that because the court refused to allow relevant, instructive testimony on areas outside of common knowledge, and because this refusal impacted the outcome of the case, the judgment should be reversed and the matter remanded for a new trial.

Before the court heard evidence, it granted the plaintiffs motion to preclude the expert testimony of Wypy-choski because he never was disclosed as an expert. Strictly as a precautionary matter, the plaintiff had filed the motion in limine to preclude him from providing expert testimony. During a colloquy with the court, the defendant’s counsel explicitly stated that the defendant did not intend to use Wypychoski as an expert. When the court ultimately determined that it would allow him to testify as a fact witness only, the defendant’s counsel stated that the ruling was reasonable. Wypychoski was not subsequently called to testify at trial. On the basis of these facts, we cannot conclude that the court abused its discretion in granting the plaintiffs motion to preclude Wypychoski from testifying as an expert.

Ill

The defendant’s final claim is that the court improperly concluded that the plaintiff established its damages to a reasonable degree of certainty under the circumstances. Because the plaintiff was unable to testify as to an actual out-of-pocket cost to repair the damages caused by the fire and there were no receipts for the actual repair costs, the defendant argues that the judgment should be reversed and the case remanded for a new trial. Additionally, the defendant contends that the plaintiff failed to submit its insurance policy with the Commons into evidence and, thus, there is no document in evidence that supports the plaintiffs claim to a right of subrogation. We are not persuaded by the defendant’s arguments.

In its memorandum of decision, the court found that Wheeler, the plaintiffs insurance adjuster who had more than fourteen years of experience in the profession, was sent a written form by the adjusters representing the Commons that detailed line by line the areas that had to be repaired. This form was admitted as an exhibit without objection by the defendant. Wheeler also retained a contractor to determine the scope of the damages. The contractor prepared two reports outlining the losses at the Commons. Both reports were admitted as exhibits, and the final report concluded that the repair costs were $676,842.67. Wheeler specifically relied on these reports in creating the statement of loss. Wheeler then reviewed the insurance policy that was issued by the plaintiff to the Commons, determined what was covered under the policy and applied that to the loss in arriving at the summary of claim that was also admitted as an exhibit. The plaintiff paid the Commons $664,373.02 because of the insured fire loss and received a subrogation receipt from the Commons stating this amount.

The court found that the defendant did not offer any rebuttal evidence that $664,373.02 did not represent the cost of repair. Furthermore, the court found that although the defendant argued that the damages should be reduced because the Commons was responsible in part for the spread of the fire, it neither affirmatively pleaded that claim nor offered any evidence in support of diminished damages. After reviewing the evidence, the court determined that the defendant’s argument that the damages were an approximation was without merit. Accordingly, the court awarded judgment in favor of the plaintiff for $664,373.02, plus interest at 6 percent from July 9, 1997, the date the plaintiff received the subrogation receipt.

“[T]he trial court has broad discretion in determining damages. . . . The determination of damages involves a question of fact that will not be overturned unless it is clearly erroneous. . . . Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty. . . . Thus, [t]he court must have evidence by which it can calculate the damages, which is not merely subjective or speculative, but which allows for some objective ascertainment of the amount.” (Citation omitted; internal quotation marks omitted.) Duplissie v. Devino, 96 Conn. App. 673, 699, 902 A.2d 30, cert. denied, 280 Conn. 916, 908 A.2d 536 (2006). “Speculative evidence is not sufficient evidence for the trier to make a fair and reasonable estimate of the plaintiffs damages . . . however, [mjathematical exactitude in the proof of damages is often impossible, but the plaintiff must nevertheless provide sufficient evidence for the trier to make a fair and reasonable estimate. . . . Evidence is considered speculative when there is no documentation or detail in support of it and when the party relies on subjective opinion.” (Citations omitted; internal quotation marks omitted.) Viejas Band of Kumeyaay Indians v. Lorinsky, 116 Conn. App. 144, 163, 976 A.2d 723 (2009).

On the basis of our review of the record, we conclude that the court did not abuse its discretion in determining the amount of damages and that there was sufficient evidence to support the plaintiffs claim to a right of subrogation. The evidence affords a sufficient basis for determining with reasonable certainty that the plaintiffs damages were $664,373.02.

The judgment is affirmed.

In this opinion the other judges concurred.

       The parties stipulated that on August 9,1996, Holmes was employed by the defendant.

       The Commons consists of three buildings—buildings A, B and C. Building C is three stories high.

       A shower diverter connects the hot and cold water lines into a single device, allowing the water to mix before it goes into the shower lead and eventually to the shower head.

       The defendant does not challenge on appeal the court’s conclusion regarding causation.

       Professional negligence frequently is defined as “the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services . . . .” (Internal quotation marks omitted.) Keeney v. Mystic Valley Hunt Club, Inc., 93 Conn. App. 368, 375, 889 A.2d 829 (2006).

       “There is an exception to this rule, however, where there is such an obvious and gross want of care and skill that the neglect is clear even to a [layperson], . . . Thus, when the defendant’s performance constituted such an obvious and gross want of care and skill as to fall within the exception to the expert witness requirement, the plaintiff is not required to present expert testimony to establish the proper standard of professional skill and care.” Vanliner Ins. Co. v. Fay, 98 Conn. App. 125, 137, 907 A.2d 1220 (2006). Because we conclude that expert testimony was not required in this case—the question involved did not go beyond the field of the ordinary knowledge and experience of the trier of fact—we need not apply this exception in our analysis.

       Expert testimony generally is admissible if “(1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.” (Internal quotation marks omitted.) State v. Borrelli, 227 Conn. 153, 165, 629 A.2d 1105 (1993).

       The commentary to § 7-2 of the Connecticut Code of Evidence, regarding the admission of expert testimony, provides: “[T]he expert witness’ testimony must assist the trier of fact in understanding the evidence or determining a fact in issue. . . . Crucial to this inquiry is a determination that the scientific, technical or specialized knowledge upon which the expert’s testimony is based goes beyond the common knowledge and comprehension, i.e., ‘beyond the ken,’ of the average juror.” (Citations omitted.) Conn. Code Evid. § 7-2, commentary.

       “We note that expert testimony has not been required to show: negligent boat operation; Michalski v. Hinz, 100 Conn. App. 389, 404, 918 A.2d 964 (2007); or detrimental effects of marijuana. State v. Padua, supra, [273 Conn.] 149; see also Ciarlelli v. Romeo, 46 Conn. App. 277, 283, 699 A.2d 217 (citing cases concluding expert testimony not required to prove: effect of operating gasoline station on traffic safety; injuries sustained on plaintiffs property were caused by defendant’s blasting; negligence in failing to erect porch railing; fence erected around blasting area insufficient to prevent injuries; obscenity of certain materials for minors), cert. denied, 243 Conn. 929, 701 A.2d 657 (1997).” Allison v. Manetta, 284 Conn. 389, 406, 933 A.2d 1197 (2007).

       “Although Connecticut has adopted the doctrine of comparative negligence; see General Statutes § 52-572h (b); our statutes retain the term contributory negligence. See, e.g., General Statutes §§ 52-114 and 52-572h (b).” (Internal quotation marks omitted.) Juchniewicz v. Bridgeport Hospital, 281 Conn. 29, 32 n.4, 914 A.2d 511 (2007).

       In a colloquy with the defendant’s counsel regarding the plaintiff’s objection to Loomis’ testimony, the court stated: “[Loomis] may be familiar with the [building] code, but [the plaintiffs] objection is based upon the fact that there was no special defense ... or claim ... of comparative negligence. You never made that claim in your defense. Now, [the defendant is] expanding [its] pleading by having [Loomis] discuss a code which [the plaintiff] does not even know about.”

       General Statutes § 52-114 provides: “In any action to recover damages for negligently causing the death of a person, or for negligently causing personal injury or property damage, it shall be presumed that such person whose death was caused or who was injured or who suffered property damage was, at the time of the commission of the alleged negligent act or acts, in the exercise of reasonable care. If contributory negligence is relied upon as a defense, it shall be affirmatively pleaded by the defendant or defendants, and the burden of proving such contributory negligence shall rest upon the defendant or defendants.” (Emphasis added.)

       See also Practice Book § 10-53 (“[i]f contributory negligence is relied upon as a defense, it shall be affirmatively pleaded by the defendant and the defendant shall specify the negligent acts or omissions on which the defendant relies”).


text:
    DAVID GREENFIELD v. SUSAN REYNOLDS, ZONING ENFORCEMENT OFFICER OF THE TOWN OF WESTPORT
    (AC 30914)
    Flynn, C. J., and Harper and Alvord, Js.

    Argued January 19
    officially released July 13, 2010

      Carmine Perri, for the appellant (plaintiff).

      Kari L. Olson, with whom, on the brief, was Michael A. Zizka, for the appellee (defendant).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

HARPER, J.

The plaintiff, David Greenfield, appeals from the judgment of the trial court rendered in favor of the defendant, Susan Reynolds, zoning enforcement officer for the town of Westport, following the court’s granting of the defendant’s motion to strike the plaintiffs complaint. On appeal, the plaintiff claims that the court improperly determined that his complaint failed to allege facts necessary to establish the elements for the issuance of a writ of mandamus. We affirm the judgment of the trial court.

The plaintiff filed an amended complaint on June 6, 2008. “In an appeal from a judgment following the granting of a motion to strike, we must take as true the facts alleged in the plaintiffs complaint and must construe the complaint in the manner most favorable to sustaining its legal sufficiency.” Waters v. Autuori, 236 Conn. 820, 822, 676 A.2d 357 (1996). Accordingly, we take as true the following facts alleged in the plaintiffs amended complaint. The plaintiff is the owner of property adjacent to property owned by Carter Wiseman and Eileen Wiseman. At some point, the Wisemans applied to the zoning board of appeals of the town of Westport (board) for a variance to permit the legalization of a residential dwelling unit above a detached garage on their property. The board granted the Wise-mans’ application. The plaintiff appealed from the board’s decision to the Superior Court. The court, Hon. Howard T. Owens, Jr., judge trial referee, sustained the plaintiffs appeal. The court found that the board “could not reasonably conclude that the Wisemans’ garage apartment constituted a nonconforming use or a hardship” and that “the garage apartment does not qualify as a permitted use under the zoning regulations.”

After the appeal was sustained, the plaintiff contacted the Westport planning and zoning office repeatedly to demand enforcement of the judgment. The Wisemans, however, filed a new application for approval on January 23, 2007. The following week, counsel for the plaintiff was advised by the director of planning and zoning for Westport that it was the practice of the planning and zoning office not to pursue an enforcement action if an applicant shows progress toward legalizing the nonconforming condition. Subsequent to this, the Wise-mans withdrew their January 23 application. On February 6, 2007, the defendant notified the Wisemans that their previous zoning permit and zoning certificate of compliance for the garage apartment had been revoked. The defendant ordered the Wisemans to convert the garage apartment into a first floor garage with an attic area in order to conform with zoning regulations. Further, the defendant advised the Wisemans that they needed to contact her office to have the property inspected. As of the date that the plaintiff filed his complaint, the Wisemans’ property had not been inspected, and no further action had been taken by either the defendant or the town of Westport to enforce its zoning regulations.

In his prayer for relief, the plaintiff requested the issuance of a writ of mandamus ordering the defendant (1) to issue a cease and desist order requiring compliance with the Westport zoning regulations, (2) to record the cease and desist order in the Wesport land records, (3) to “refer the violations of the nonconforming garage apartment ... to the Westport [t]own [a]ttomey’s office for the filing of a civil action to enforce the cease and desist order,” and (4) to issue fines to the Wisemans for their violation of the Westport zoning regulations. On July 15, 2008, the defendant filed a motion to strike the amended complaint in its entirety. The defendant claimed that she had “no mandatory duty to take the enforcement action against a third party that [the] plaintiff seeks. Moreover, [the] plaintiff has no right to compel the [defendant] to take such action and the plaintiff has other adequate remedies at law.” On November 18, 2008, the court, Beilis, J., granted the defendant’s motion to strike. The plaintiff did not file a substitute pleading, and on December 9, 2008, the defendant filed a motion for judgment. On March 19, 2009, the court, Hiller, J., rendered judgment in favor of the defendant. This appeal followed.

On appeal, the plaintiff claims that the court improperly granted the defendant’s motion to strike. Specifically, the plaintiff claims that the court improperly concluded that he “failed to allege facts necessary to establish any of the required elements for the issuance of a writ of mandamus.” We disagree.

“The standard of review in an appeal challenging a trial court’s granting of a motion to strike is well established. A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court’s ruling is plenary. . . . We take the facts to be those alleged in the [pleading] that has been stricken and we construe the [pleading] in the manner most favorable to sustaining its legal sufficiency.” (Internal quotation marks omitted.) Ameriquest Mortgage Co. v. Lax, 113 Conn. App. 646, 649, 969 A.2d 177, cert. denied, 292 Conn. 907, 973 A.2d 103 (2009).

Our task, therefore, is clear. We must examine whether the plaintiff has alleged facts that would sustain a claim for a writ of mandamus. “Mandamus is an extraordinary remedy, available in limited circumstances for limited purposes. ... It is fundamental that the issuance of the writ rests in the discretion of the court, not an arbitrary discretion exercised as a result of caprice but a sound discretion exercised in accordance with recognized principles of law. . . . That discretion will be exercised in favor of issuing the writ only where the plaintiff has a clear legal right to have done that which he seeks. . . . The writ is proper only when (1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy.” (Internal quotation marks omitted.) Miles v. Foley, 253 Conn. 381, 391, 752 A.2d 503 (2000).

The plaintiff first argues that the court improperly determined that the enforcement of zoning regulations is discretionary, rather than mandatory, in nature. As a result, the plaintiff claims that the court improperly found that he did not allege facts that would sustain the first prong of the three-pronged test for mandamus. We disagree.

Our Supreme Court has held that “[i]t is axiomatic that [t]he duty [that a writ of mandamus] compels must be a ministerial one; the writ will not lie to compel the performance of a duty which is discretionary. . . . Consequently, a writ of mandamus will he only to direct performance of a ministerial act which requires no exercise of a public officer’s judgment or discretion. . . . Furthermore, where a public officer acts within the scope of delegated authority and honestly exercises her judgment in performing her function, mandamus is not available to review the action or to compel a different course of action. . . . Discretion is determined from the nature of the act or thing to be done rather than from the character of the office of the one against whom the writ is directed.” (Citations omitted; internal quotation marks omitted.) AvalonBay Communities, Inc. v. Sewer Commission, 270 Conn. 409, 422, 853 A.2d 497 (2004). “Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder . . . there are cases where it is apparent from the complaint.” (Citation omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 628, 749 A.2d 630 (2000).

The essential purpose of General Statutes § 8-12 is to further “the deterrence of violations of the zoning ordinances.” Monroe v. Renz, 46 Conn. App. 5, 14, 698 A.2d 328 (1997). To that end, “§ 8-12 was enacted to provide local zoning enforcement officers with a means of enforcing their regulations . . . .” Fisette v. DePietro, 28 Conn. App. 379, 387, 611 A.2d 417 (1992); accord Stamford v. Stephenson, 78 Conn. App. 818, 826, 829 A.2d 26 (purpose of § 8-12 is to provide means to enforce zoning regulations and to prevent unlawful use of buildings), cert. denied, 266 Conn. 915, 833 A.2d 466 (2003). Section 8-12 provides in relevant part: “If any building or structure has been erected, constructed, altered, converted or maintained, or any building, structure or land has been used, in violation of any provision of this chapter or of any bylaw, ordinance, rule or regulation made under authority conferred hereby, any official having jurisdiction, in addition to other remedies, may institute an action or proceeding to prevent such unlawful erection, construction, alteration, conversion, maintenance or use or to restrain, correct or abate such violation or to prevent the occupancy of such building, structure or land or to prevent any illegal act, conduct, business or use in or about such premises. Such regulations shall be enforced by the officer or official board or authority designated therein . . . .” (Emphasis added.)

The plaintiff asserts that § 8-12 mandates that the defendant enforce zoning regulations. The plaintiffs argument focuses in large part on the portion of § 8-12 which provides that zoning regulations “shall be enforced by the officer or official board or authority designated therein . . . .” (Emphasis added.) Specifically, the plaintiff argues that the word “shall” ordinarily is construed as mandatory and that this portion of the statute “commands the zoning enforcement officer to enforce the zoning regulations.” We are not persuaded.

The plaintiffs argument requires us to interpret § 8-12. “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) Booker v. Jarjura, 120 Conn. App. 1, 8-9, 990 A.2d 894 (2010).

In the present case, it is clear that the word “shall” simply establishes who has the discretion to enforce zoning regulations. Moreover, it is clear that the power to enforce zoning regulations conferred by § 8-12 on town officials is discretionary. As the court aptly noted in its decision, our Supreme Court, in discussing the difference between a ministerial and discretionary act, has held that “ [governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature. . . . On the other hand, ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action.” (Internal quotation marks omitted.) Heigl v. Board of Education, 218 Conn. 1, 5, 587 A.2d 423 (1991). Section 8-12 simply provides a means by which authorized parties may enforce zoning regulations. It does not provide a rigid, “prescribed manner” by which the authorized “officer or official board or authority designated therein” must enforce zoning regulations. Indeed, § 8-12 provides several remedies that are available to a zoning enforcement officer when confronted with a violation of zoning regulations. These remedies include, inter alia, “institut[ing] an action or proceeding to prevent” the proscribed activity, issuing orders in writing to remedy conditions found to be in violation of zoning regulations, and requesting a court to levy statutory fines and penalties. Additionally, because zoning regulations exist for the direct benefit of the public, it logically follows that actions taken to enforce zoning regulations are done for the direct benefit of the public as well. In sum, we conclude that the specific relief sought by the plaintiff, namely, the enforcement of zoning regulations, being an act that is to be performed wholly for the “direct benefit of the public” and not in a “prescribed manner without the exercise of judgment or discretion as to the propriety of the action”; (internal quotation marks omitted) Heigl v. Board of Education, supra, 5; is a discretionary and not ministerial act and, therefore, not amenable to mandamus relief.

The plaintiff has failed to allege facts that would satisfy the first prong of the test for the issuance of a writ of mandamus. Because a writ of mandamus is appropriate only when all three prongs of the test have been satisfied, the plaintiffs failure to satisfy any one of them is dispositive of his claim. See Nielsen v. Kezer, 232 Conn. 65, 88 n.31, 652 A.2d 1013 (1995).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 8-2, which authorizes each city, town or borough to create zoning regulations, provides in relevant part: “Such regulations shall be designed to lessen congestion in the streets; to secure safety from fire, panic, flood and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population and to facilitate the adequate provision for transportation, water, sewerage, schools, parks and other public requirements. . . .”


author: ROBINSON, J.

text:
    GARY H. ALLIGOOD ET AL. v. ANTHONY LASARACINA ET AL.
    (AC 30406)
    Gruendel, Robinson and Alvord, Js.

      Argued December 9, 2009
    officially released July 13, 2010

      James Colin Mulholland, for the appellants (plaintiffs).

      Mark E. Block, with whom, on the brief, was Gary W. Huebner, for the appellees (defendants).
   Opinion

ROBINSON, J.

The plaintiffs, Gary H. Alligood and Holly J. Alligood, appeal from the judgment of the trial court in favor of the defendants, Anthony LaSaracina and Shelene LaSaracina. The plaintiffs claim that the court improperly found that the defendants could unilaterally obstruct the plaintiffs’ right-of-way over the defendants’ property. We agree and reverse the judgment of the trial court.

The following facts and procedural history are uncontested. The plaintiffs are fee owners of the property located at 30 Eden Park Drive in Salem. The defendants are fee owners of an adjacent parcel of property located at 29 Eden Park Drive. The plaintiffs acquired their property by an executor’s deed on December 21, 2000. The defendants acquired their property by a warranty deed duly recorded on July 17, 1995. The plaintiffs’ property is landlocked and can only be accessed by crossing the defendants’ property. As a result, the defendants’ property is subject to a right-of-way in favor of the plaintiffs for the purpose of ingress and egress. The right-of-way was first created by a warranty deed duly recorded on August 29, 1980. It extends from Route 82 to the defendants’ property where it terminates in a circular turnaround. In or about 2000, just before the plaintiffs closed on their purchase of 30 Eden Park Drive, the defendants eliminated the circular turnaround at the end of the right-of-way.

On May 30,2001, the plaintiffs filed a complaint alleging that the defendants unlawfully altered the dimensions of the right-of-way and seeking temporary and permanent injunctions. On September 16,2008, following an evidentiary hearing, the court found that “[t]he right-of-way ends with a loop, and the defendants have obstructed one side of the loop.” The court nevertheless found that “[t]he plaintiffs continue to have full access to their property from the other side of the loop” and denied the plaintiffs’ request for an injunction, concluding that the defendants had “not unduly restricted the plaintiffs’ use of the right-of-way . . . .” This appeal followed.

On appeal, the plaintiffs claim that the standard of law applied by the court was incorrect and argue that, absent their consent, the defendants’ alteration of the location and dimensions of the right-of-way was improper. We agree.

Whether the court applied the appropriate legal standard presents a question of law subject to our plenary review. See Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 83, 931 A.2d 237 (2007). Although not yet directly decided in Connecticut, the general rule is that “once the location of an easement has been selected or fixed, it cannot be changed by either the landowner or the easement owner without the other’s consent.” 25 Am. Jur. 2d, Easements and Licenses § 69 (2004). The majority of jurisdictions to consider the issue have adopted the general rule. See, e.g., Edgell v. Divver, 402 A.2d 395, 397-98 (Del. Ch. 1979) (“[t]he general rule is well established that an easement may not be relocated without the consent of the owners of both the dominant and servient estates”); Carrollsburg v. Anderson, 791 A.2d 54, 61 (D.C. 2002) (“as a general rule, the location of an easement, when once established, cannot be changed or the easement relocated without the mutual consent of the owners of the dominant and servient estates” [internal quotation marks omitted]); Herren v. Pettengill, 273 Ga. 122, 123, 538 S.E.2d 735 (2000) (“[t]he majority rule in the United States is that an easement with a fixed location cannot be substantially changed or relocated without the express or implied consent of the owners of both the servient estate and the dominant estate, absent reservations contained in the instrument creating the easement”).

In contrast, a minority of jurisdictions have taken an alternative approach endorsed by the Restatement (Third), Property, Servitudes § 4.8 (c) (3) (2000). See, e.g., Roaring Fork Club, L.P. v. St. Jude’s Co., 36 P.3d 1229, 1236-37 (Colo. 2001); M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87, 91, 809 N.E.2d 1053 (2004); Lewis v. Young, 92 N.Y.2d 443, 451-52, 705 N.E.2d 649, 682 N.Y.S.2d 657 (1998). Pursuant to the Restatement approach, the owners of a servient estate may unilaterally change the location or dimensions of an easement if the changes do not significantly lessen the utility of the easement, increase the burden on the easement holder or frustrate the purpose of the easement. See Restatement (Third), supra, § 4.8, comment (f). The Restatement rule “is designed to permit development of the servient estate to the extent it can be accomplished without unduly interfering with the legitimate interests of the easement holder.” Id.

We conclude that the approach adopted by the majority of jurisdictions is a logical extension of current Connecticut case law. See Coughlin v. Anderson, 270 Conn. 487, 509, 853 A.2d 460 (2004) (owner of dominant estate may not vary location of fixed easement without consent of owner of servient estate); Mackin v. Mackin, 186 Conn. 185, 439 A.2d 1086 (1982) (affirming trial court’s determination that defendants’ relocation of right-of-way improper but setting aside judgment with respect to damages). Accordingly, we adopt the majority approach.

Like many of the jurisdictions faced with this question, we believe that the attributes of the majority rule, namely, uniformity, stability, predictability and judicial economy, outweigh any increased flexibility offered by the Restatement approach. See Herren v. Pettengill, supra, 273 Ga. 124 (majority rule provides certainty in landownership); Sweezey v. Neel, 179 Vt. 507, 517-18, 904 A.2d 1050 (2006); Crisp v. VanLaeken, 130 Wn. App. 320, 325-26, 122 P.3d 926 (2005) (judicial relocation of established easements would introduce uncertainty in real estate transactions and invite endless litigation); AKG Real Estate, LLC v. Kosterman, 297 Wis. 2d 1, 23, 717 N.W.2d 835 (2006) (Restatement approach is catalyst for increased litigation and means for servient estate to reap windfall at expense of dominant estate). Moreover, unlike the Restatement approach, the majority rule encourages property owners to bargain for and consent to alterations that maximize the development and utility of both the dominant and servient estates. See Herren v. Pettengill, supra, 124 (if benefits of relocation become substantial enough, market should bring parties together, not courts); Davis v. Bruk, 411 A.2d 660, 665 (Me. 1980) (Restatement rule would deprive dominant estate owner of present security of property rights and confer windfall on servient estate owner who purchased property at price that reflected restraints already existing on property).

With the operative rule in mind, we now turn to the merits of the plaintiffs’ claim. The court found, and the parties do not dispute, that the location of the easement is fixed by map, that it ends in a circular turnaround on the defendants’ property and that the defendants eliminated the circular turnaround. The defendants did so without the plaintiffs’ consent. Accordingly, pursuant to the majority rule, we conclude that the defendants’ alteration of the plaintiffs’ right-of-way was improper.

The judgment is reversed as to the finding that the defendants did not unduly restrict the plaintiffs’ use of the right-of-way across the defendants’ property and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The majority of facts referenced have been taken from a signed stipulation of facts that the parties filed with the court.

       The same conveyance also granted the plaintiffs’ predecessors in title the right to park cars on a portion of the right-of-way and further restricted the use of the defendants’ property by prohibiting the erection of a structure or dwelling on the portion of the property north of the dwelling.

       On July 15, 1995, the plaintiffs’ predecessors in title and the defendants entered into an “Agreement Re: Location of Right of way and Release of Right to Park” to define the location of the right-of-way. The agreement was recorded on July 17, 1995.

       The defendants filled in the westerly portion of the gravel turnaround with top soil, planted grass and physically obstructed the plaintiffs’ passage over this portion of the right-of-way with a trampoline.

       The plaintiffs also claimed that the defendants violated the restrictive covenant prohibiting the erection of a structure or dwelling northerly of the northern face of the dwelling on their property. The court found that the defendants violated such restrictive covenant. The defendants’ appeal followed and is addressed in Alligood v. LaSaracina, 122 Conn. App. 479, 999 A.2d 833 (2010).

       The plaintiffs also argue that the alterations to the right-of-way imposed a burden on the dominant estate and were not necessary to the normal use or development of the servient estate. Because we conclude that the defendants’ unilateral changes to the location and dimensions of the right-of-way were improper, we do not reach the plaintiffs’ additional claims.

       The Restatement (Third), supra, § 4.8 (c) (3), provides in relevant part: “Unless expressly denied by the terms of an easement . . . the owner of the servient estate is entitled to make reasonable changes in the location or dimensions of an easement, at the servient owner’s expense, to permit normal use or development of the servient estate, but only if the changes do not: (a) significantly lessen the utility of the easement, (b) increase the burdens on the owner of the easement in its use and enjoyment, or (c) frustrate the purpose for which the easement was created.”

       See also footnote 3 of this opinion.


author: ALVORD, J.

text:
    GARY H. ALLIGOOD ET AL. v. ANTHONY LASARACINA ET AL.
    (AC 30407)
    Gruendel, Robinson and Alvord, Js.
    Argued December 9, 2009
    officially released July 13, 2010

      Mark E. Block, with whom, on the brief, was Gary W. Huebner, for the appellants (defendants).

      James Colin Mulholland, for the appellees (plaintiffs).
   Opinion

ALVORD, J.

The defendants, Anthony LaSaracina and Shelene LaSaracina, appeal from the judgment of the trial court ordering them to remove a porch that the court found they had constructed in violation of a restrictive covenant contained in their deed of conveyance. The defendants claim that the court improperly determined that (1) the construction of the porch violated the restrictive covenant, (2) the restrictive covenant ran with the land and was enforceable by the plaintiffs, Gary H. Alligood and Holly J. Alligood, and (3) the doctrine of laches did not operate to bar the plaintiffs’ enforcement of the restrictive covenant. We agree with the defendants’ first claim and, accordingly, reverse the judgment of the trial court.

The facts underlying the defendants’ appeal are set out more fully in the plaintiffs’ companion appeal, Alli-good v. LaSaracina, 122 Conn. App. 473, 999 A.2d 836 (2010), which was released on the same date as this opinion. The following additional facts are necessary for the resolution of this appeal. The defendants acquired their property at 29 Eden Park Drive in Salem by warranty deed recorded on July 17, 1995. The legal description of their property contains the language: “Said premises are conveyed subject to a restriction that shall prohibit the erection of a structure or dwelling on that portion of the conveyed premises northerly of the northern face of the dwelling on said conveyed premises . . . ,” The legal description also indicates that the subject property is shown on a map dated November, 1950, with revisions to August, 1953, as on file in the office of the Salem town clerk. That map depicts the location of the dwellings on the properties of the plaintiffs and the defendants.

In late 1997 or early 1998, the defendants constructed both an addition to their house and a porch. The porch is attached to the addition. The parties’ stipulated facts, presented to the court before the start of evidence, provided that the defendants “constructed an addition to the structure in place when they acquire [d] the land, which addition includes a porch approximately [eight feet] wide by [twenty-three feet] long.” At trial, the plaintiffs claimed that the porch is situated northerly of the face of the dwelling as it existed when the defendants acquired their property and is, therefore, a structure that was erected in violation of the restrictive covenant in the defendants’ deed. The plaintiffs did not contend that the addition, which was constructed at or about the same time as the porch, violates that covenant.

At the conclusion of the evidence and following closing argument by counsel, the court rendered its judgment orally. With respect to the porch, the court “[found] that the defendants erected a porch, covered by a roof, on the northerly side or face of the dwelling and [had] violated the restrictive covenant.” The court then “order[ed] the defendants to remove the porch, except that they may retain the concrete slab [that] is below the addition and need not be removed.” This appeal followed.

“[T]he determination of the intent behind language in a deed, considered in the light of all the surrounding circumstances, presents a question of law on which our scope of review is . . . plenary. . . . Thus, when faced with a question regarding the construction of language in deeds, the reviewing court does not give the customary deference to the trial court’s factual inferences.” (Internal quotation marks omitted.) Arnold v. Hoffer, 94 Conn. App. 53, 57, 891 A.2d 63 (2006).

“The meaning and effect of the [restrictive covenant] are to be determined, not by the actual intent of the parties, but by the intent expressed in the deed, considering all its relevant provisions and reading it in the light of the surrounding circumstances .... The primary rule of interpretation of such [restrictive] covenants is to gather the intention of the parties from their words, by reading, not simply a single clause of the agreement but the entire context, and, where the meaning is doubtful, by considering such surrounding circumstances as they are presumed to have considered when their minds met.” (Internal quotation marks omitted.) Wood v. Amer, 54 Conn. App. 601, 605, 736 A.2d 162 (1999), aff'd, 253 Conn. 514, 755 A.2d 175 (2000). “A restrictive covenant must be narrowly construed and ought not to be extended by implication. . . . Moreover, if the covenant’s language is ambiguous, it should be construed against rather than in favor of the covenant.” (Citation omitted; internal quotation marks omitted.) Morgenbesser v. Aquarion Water Co., 276 Conn. 825, 829, 888 A.2d 1078 (2006).

We conclude that the language of the restrictive covenant prohibiting the erection of a “structure or dwelling on that portion of the conveyed premises northerly of the northern face of the dwelling on said conveyed premises” does not apply to the construction of a porch that is attached to an existing structure. (Emphasis added.) As drafted, the covenant prohibits construction of a separate structure or dwelling on the property, i.e., the conveyed premises, north of the face of the existing dwelling. The covenant does not prohibit an addition to the existing dwelling. If the intent had been to prohibit the expansion of the existing dwelling, the restrictive covenant would have been worded differently. To the extent that the language is ambiguous, we construe it against the application of the restriction to the present situation. Because the resolution of this issue is dispositive of the appeal, we do not reach the defendants’ remaining claims.

The judgment is reversed as to the finding that the defendants violated the restrictive covenant contained in the deed to their property and the case is remanded with direction to vacate the order that they remove the porch they erected and to render judgment in favor of the defendants.

In this opinion the other judges concurred.

       The restriction first appears in the defendants’ chain of title in a warranty deed from Joan S. Berton to James E. Baxendale and Gail Baxendale recorded in the Salem land records on August 29, 1980. At that time, Berton retained a portion of her property that later was conveyed to the plaintiffs.

       Gary H. Alligood testified that the defendants’ porch did not obstruct the plaintiffs’ view of Gardner Lake and did not affect the use of the plaintiffs’ property.

       There was no testimony at trial with respect to the intent of the original grantor, Joan S. Berton, and the original grantees, James E. Baxendale and Gail Baxendale, when the restrictive covenant was first drafted and inserted in the deed of conveyance. We can determine from the map on file referenced in that deed that the properties of the parties abut one another and that the northerly side of the then existing dwelling on the defendants’ property was a relatively short distance from the southerly boundary line of the plaintiffs’ property.
      It is reasonable to infer from the surrounding circumstances that the intent of the parties was to prohibit the erection of any additional structures or dwellings between the existing house on the defendants’ property and the plaintiffs’ southerly boundary line. From the map, and the photographs submitted at trial, it is apparent that the parties’ houses are close to each other and that an additional building between them necessarily would have an impact on their privacy.


author: BEACH, J.

text:
    VERNON STANCUNA v. ANDREW I. SCHAFFER
    (AC 30798)
    Flynn, C. J., and Beach and West, Js.

      Argued March 15
    officially released July 13, 2010

      John R. Williams, for the appellant (plaintiff).

      Brock T. Dubin, for the appellee (defendant).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

BEACH, J.

The plaintiff, Vernon Stancuna, appeals from the judgment of the trial court rendered in favor of the defendant, Andrew I. Schaffer. On appeal, the plaintiff claims that the court improperly struck his third revised complaint in its entirety. We affirm the judgment of the trial court.

In his operative complaint, filed on May 19, 2008, the plaintiff alleged the following facts, which are relevant to our discussion of the issue on appeal. The plaintiff in this case was also the plaintiff in another lawsuit, Stancuna v. Stancuna, Superior Court, judicial district of New Haven, Docket No. FA-05-4010965. The defendant, an attorney, was appointed the guardian ad litem of the minor children in Stancuna v. Stancuna, supra, Superior Court, Docket No. FA-05-4010965. The court in that case, Frazzini, J., heard matters in that action on many occasions and was closely familiar with the case. On October 17, 2007, approximately two years after his service as guardian ad litem had ended, the defendant approached Judge Frazzini in his chambers and intentionally made statements to him regarding the plaintiff, which statements he knew or should have known would cause Judge Frazzini to recuse himself from sitting on the case and would thus cause a mistrial. The plaintiff was not aware of the exact contents of the conversation but was aware that the conversation took place because Judge Frazzini reported the existence of the conversation in open court and stated that, as a result of the defendant’s statements, he believed that he must recuse himself from the case. Judge Fraz-zini recused himself from the case on the same day. As a result of the recusal, the plaintiff was forced to reliti-gate the matter before a different judge. The plaintiff alleges that this additional litigation caused him economic losses and severe emotional distress. He further alleges that his injuries were the reasonably foreseeable consequence of the defendant’s actions and that the defendant’s conduct was extreme and outrageous. The plaintiffs third revised complaint consisted of three counts: (1) tortious interference with his litigation relationship to the defendant in Stancuna v. Stancuna, supra, Superior Court, Docket No. FA-05-4010965, and with his professional relationship with his attorneys in that action, (2) negligent infliction of emotional distress and (3) intentional infliction of emotional distress.

On September 19, 2008, the defendant filed a motion to strike the third revised complaint in its entirety, alleging that (1) the plaintiffs complaint did not allege that the defendant had interfered with a business relationship between the plaintiff and a third party, (2) the plaintiff failed to identify any tortious conduct, (3) the conduct alleged was not extreme and outrageous and (4) the plaintiff failed to identify any duty that the defendant had breached. Following a hearing on the defendant’s motion, the court granted the motion to strike on December 15,2008. The defendant subsequently filed a motion for judgment, which the court granted on February 2,2009. This appeal followed. Additional facts will be set forth as necessary.

We begin by setting forth the standard of review. “Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court’s ruling on the [defendant’s motion] is plenary. . . . We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. . . . Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged. ... It is fundamental that in determining the sufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted. . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.” (Citations omitted; internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292-93, 842 A.2d 1124 (2004). We will address each of the stricken counts in turn.

I

The plaintiff first claims that the court improperly struck count one of his complaint. In that count, the plaintiff alleged that the defendant had tortiously interfered with his professional relationship with his attorneys in the underlying action. The court found that because the plaintiffs complaint did not allege facts that showed that the defendant’s conduct was tortious, this claim must be stricken. We disagree with the plaintiffs claim.

“[Our Supreme Court] has long recognized a cause of action for tortious interference with contract rights. . . . The essential elements of such a claim include, of course, the existence of a contractual or beneficial relationship and that the defendant(s), knowing of that relationship, intentionally sought to interfere with it; and, as a result, the plaintiff claimed to have suffered actual loss. . . . [F]or a plaintiff successfully to prosecute such an action it must prove that the defendant’s conduct was in fact tortious. This element may be satisfied by proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation ... or that the defendant acted maliciously.” (Internal quotation marks omitted.) Rossman v. Morasco, 115 Conn. App. 234, 244, 974 A.2d 1, cert. denied, 293 Conn. 923, 980 A.2d 912 (2009). “The burden is on the plaintiff to plead and prove at least some improper motive or improper means ... on the part of the [defendant].” (Citation omitted; internal quotation marks omitted.) Solomon v. Aberman, 196 Conn. 359, 365, 493 A.2d 193 (1985). “The plaintiff in a tortious interference claim must demonstrate malice on the part of the defendant, not in the sense of ill will, but intentional interference without justification.” (Internal quotation marks omitted.) Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 806, 734 A.2d 112 (1999).

The court found that the plaintiff did not plead a cause of action for tortious interference properly. It found that although the plaintiffs relationship with his attorneys presumably was a contractual relationship, the plaintiff failed to plead that the defendant’s actions were wrongful beyond the interference itself. See Kaka-delis v. DeFabritis, 191 Conn. 276, 280, 464 A.2d 57 (1983) (“[a] claim is made out [only] when interference resulting in injury to another is wrongful by some measure beyond the fact of the interference itself’ [internal quotation marks omitted]). The plaintiff contends that his allegation that the defendant “approached Judge Frazzini alone in his chambers . . . and intentionally made statements to Judge Frazzini concerning the plaintiff which he knew or should have known would cause a mistrial of the plaintiffs litigation and disqualify Judge Frazzini from sitting on the matter” sufficiently alleged a malicious intention on behalf of the defendant. We are not persuaded.

To survive a motion to strike, the plaintiffs complaint must allege all of the requisite elements of a cause of action. The plaintiffs complaint fails to allege facts supporting one of the necessary elements for a claim of tortious interference. His allegation that the defendant knew or should have known that his conversation with Judge Frazzini would have resulted in Judge Frazzini’s recusal is not sufficient to allege that the defendant acted maliciously. There are many instances in which the defendant could have intended the consequences of his action without having acted maliciously. Because the plaintiff did not allege facts indicating that the defendant acted without justification, the complaint is flawed. Accordingly, we conclude that the court did not improperly grant the defendant’s motion to strike as to count one of the plaintiffs complaint.

II

The plaintiff next claims that the court improperly struck count two of his complaint. Specifically, he argues that the court erred in holding that he did not properly plead a claim of negligent infliction of emotional distress. We disagree.

“To prevail on a claim of negligent infliction of emotional distress, the plaintiff must plead and prove the following: (1) the defendant’s conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiffs distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant’s conduct was the cause of the plaintiffs distress. . . . Thus, [t]he plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm.” (Citation omitted; internal quotation marks omitted.) Davis v. Davis, 112 Conn. App. 56, 68, 962 A.2d 140 (2009).

“The foreseeability requirement in a negligent infliction of emotional distress claim is more specific than the standard negligence requirement that an actor should have foreseen that his tortious conduct was likely to cause harm. ... In order to state a claim for negligent infliction of emotional distress, the plaintiff must plead that the actor should have foreseen that her behavior would likely cause harm of a specific nature, i.e., emotional distress likely to lead to illness or bodily harm.” (Citation omitted.) Olson v. Bristol-Burlington Health District, 87 Conn. App. 1, 5, 863 A.2d 748, cert. granted on other grounds, 273 Conn. 914, 870 A.2d 1083 (2005) (appeal withdrawn May 25, 2005).

The plaintiff has failed to allege any conduct that would lead the defendant to foresee that his actions would cause the plaintiff emotional distress likely to lead to illness or bodily harm. The plaintiff bases his emotional distress claim on the allegation that the defendant knew that his actions would lead Judge Fraz-zini to recuse himself, and that he knew or should have known that such a recusal would cause the plaintiff severe emotional distress for having to relitigate his case. We previously have held that engaging in litigation is inherently distressing and that continuous or repeated involvement in litigation does not create an unreasonable risk of causing the plaintiff emotional distress. See Wilson v. Jefferson, 98 Conn. App. 147, 163, 908 A.2d 13 (2006) (landlord’s repeated filing of summary process actions does not create unreasonable risk of causing tenant emotional distress). Accordingly, we conclude that the court did not improperly grant the defendant’s motion to strike as to count two of the plaintiffs complaint.

Ill

The plaintiff finally claims that the court improperly granted the defendant’s motion to strike as to count three of his complaint. Count three of the plaintiffs complaint sounded in intentional infliction of emotional distress. The plaintiff argues that the court erred in holding that the conduct alleged in this case was not extreme and outrageous. We disagree.

“In order to prevail on a claim of intentional infliction of emotional distress, the plaintiff must prove: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiffs distress; and (4) that the emotional distress sustained by the plaintiff was severe.” (Internal quotation marks omitted.) Petitte v. DSL.net, Inc., 102 Conn. App. 363, 375, 925 A.2d 457 (2007). “Liability for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind. . . . [I]t is the intent to cause injury that is the gravamen of the tort . . . .” (Citation omitted; internal quotation marks omitted.) Wilson v. Jefferson, supra, 98 Conn. App. 160. “[I]n assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint ... set forth behaviors that a reasonable fact finder could find to be extreme or outrageous.” (Internal quotation marks omitted.) Gagnon v. Housatonic Valley Tourism, District Commission, 92 Conn. App. 835, 847, 888 A.2d 104 (2006).

The court found that the conduct alleged in this case, which was that a lawyer had had an ex parte conversation with a judge that led the judge to recuse himself, was not outrageous and did not transgress the bounds of socially tolerable behavior. The court also stated that there were times when a lawyer ethically would be required to have such a conversation with a judge in a particular case, and to hold as the plaintiff desires could “ ‘have a chilling and inhibiting effect’ ” on lawyers meeting their ethical obligations.

“Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress.” (Internal quotation marks omitted.) Little v. Yale University, 92 Conn. App. 232, 239-40, 884 A.2d 427 (2005), cert. denied, 276 Conn. 936, 891 A.2d 1 (2006). On the basis of this standard, we agree with the court that the allegations of the plaintiffs third count do not reach the articulated standard of extreme and outrageous behavior.

The judgment is affirmed.

In this opinion the other judges concurred.

       Count one of the plaintiffs complaint also alleged that the defendant tortiously interfered with the plaintiffs “litigation relationship” with the defendant in Stancuna v. Stancuna, supra, Superior Court, Docket No. FA-05-4010965. The plaintiff is not challenging the trial court’s conclusion that such a relationship does not provide a basis for a tortious interference claim.

       Because we conclude that the plaintiffs complaint did not allege any conduct that was extreme and outrageous, we need not address his fourth claim, which is that the court erred in holding that a complaint for intentional infliction of emotional distress cannot survive unless it specifically describes the symptoms allegedly constituting emotional distress.