author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. ANNE M. BRADLEY
    (AC 30149)
    Gruendel, Harper and Beach, Js.

      Submitted on briefs June 1
    officially released September 28, 2010

      Kevin D. Lawlor, state’s attorney, Lisa A. Riggione, senior assistant state’s attorney, and Kevin S. Russo, supervisory assistant state’s attorney, filed a brief for the appellant (state).
   Opinion

PER CURIAM.

The state appeals from the judgment of the trial court setting aside the jury’s verdict finding the defendant, Anne M. Bradley, guilty of one count of breach of the peace in the second degree in violation of General Statutes § 53a-181 (6). The state claims that the evidence was sufficient to support the jury’s verdict. We agree with the state. Accordingly, we reverse the judgment of the court and remand the case with direction to reinstate the jury verdict and to proceed to sentencing.

The record reveals the following facts, which the jury reasonably could have found, and the following procedural history. In 2006, the defendant applied for and was granted admission to the University of New Haven (university). At about this time, she began writing letters to Stephen Kaplan, the president of the university. The defendant testified that these letters initially explained her “aspirations” to Kaplan but that eventually she began discussing “stress factors” that she feared would interfere with her enrollment. For instance, in a letter dated June 2, 2006, the defendant discussed, at length, her frustrations related to a workers’ compensation claim she made against an employer.

On June 16, 2006, a package that had been sent by the defendant via the United States Postal Service arrived at Kaplan’s office. The package was opened by Kaplan’s executive secretary, Lucy Wendland. Wendland, having previously opened correspondence sent to Kaplan from the defendant, recognized the return address as the defendant’s and opened the package. Inside the package, Wendland found “a pile of junk,” consisting of a cellular telephone and flattened beer cans and soda cans that were “glued together” in “one piece.” The junk was held together with a “polymeric adhesive.” In many cases, such adhesives can cause skin irritation. The package also contained a handwritten letter the defendant had written to Kaplan, the first paragraph of which read: “I bet nobody has ever given you literal junk before. And here’s some junk, but I sanitized it with Clorox before spraying glaze on it.” Upon opening the package and examining and touching its contents, Wendland experienced inconvenience, annoyance and alarm.

Wendland contacted the campus police, and Sergeant Ronald Whittaby of the university police department responded. Whittaby brought the package back to the campus police department where he removed the objects contained therein. As Whittaby did this, he noticed a chemical smell emanating from the items in the package and saw that the items were held together with “some type of gooey substance.” Whittaby touched the substance with his fingers, which he then brought close to his nose to smell. After doing so, Whittaby felt “a burning sensation” in his mouth area, which became so painful that he feared he was going to get blisters. After dropping the package off at a forensics laboratory on campus for analysis, Whittaby went to a hospital where he was treated for irritant dermatitis and released the same day. Irritant dermatitis is a skin inflammation caused by a chemical irritant.

The state charged the defendant, who is not an attorney licensed to practice law in Connecticut and was self-represented throughout the jury trial and the proceedings before this court, with one count of reckless endangerment in the second degree in violation of General Statutes § 53a-64 and two counts of breach of the peace in the second degree in violation of § 53a-181 (6). The jury returned a verdict of not guilty on the count of reckless endangerment and not guilty of one count of breach of the peace.

Count three of the state’s information charged, in relevant part: “[0]n or about the 16th day of June, 2006, at or around the area known as the University of New Haven, [the defendant] recklessly created a risk that caused inconvenience, annoyance or alarm to [Wend-land], in that she created a public and hazardous condition by the act of introducing a chemical into an envelope which she was not licensed or privileged to do, in violation of [§] 53a-181 (6).” The jury returned a verdict of guilty on this count of breach of the peace. Following the verdict, the defendant filed a motion for a judgment of acquittal, which was granted by the trial court. In its appeal from the judgment of the trial court, the state argues that the court improperly determined that there was insufficient evidence to support the jury’s verdict. We agree with the state.

We begin by setting forth our standard of review. “[I]t is well established that under the common law a trial court has the discretionary power to modify or vacate a criminal judgment before the sentence has been executed. . . . The Superior Court’s power in this respect, as evidenced by Practice Book § 42-51 et seq., provides a defendant with the ability to request that the court render a judgment of acquittal despite a guilty verdict. The trial court, thus, may determine that the verdict is legally flawed, and either release the defendant or order a new trial.” (Citations omitted; internal quotation marks omitted.) State v. McCahill, 261 Conn. 492, 517, 811 A.2d 667 (2002).

“Where, as here, the trial judge disagrees with the verdict of the jury, a vexing question often arises. . . . When this occurs, we review the action of the judge in setting the verdict aside rather than that of the jury in rendering it.” (Citation omitted; internal quotation marks omitted.) Campbell v. Gould, 194 Conn. 35, 39, 478 A.2d 596 (1984). In the present case, the trial court determined that there was insufficient evidence to support the verdict. “In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt. . . because this court has held that a [trier’s] factual inferences that support a guilty verdict need only be reasonable. . . .

“[A]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [trier’s] verdict of guilty. . . . Furthermore, [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Internal quotation marks omitted.) State v. Butler, 296 Conn. 62, 76-77, 993 A.2d 970 (2010).

Section 53a-181 (6) provides: “A person is guilty of breach of the peace in the second degree when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person . . . creates a public and hazardous or physically offensive condition by any act which such person is not licensed or privileged to do. For proposes of this section, ‘public place’ means any area that is used or held out for use by the public whether owned or operated by public or private interests.” The trial court concluded that the state failed to prove that the condition created by the defendant was either public or hazardous. We disagree. It is clear to us that, when the evidence is viewed in the light most favorable to sustaining the verdict of guilty, the jury reasonably could have concluded that the cumulative force of the evidence established that the defendant recklessly created a condition that was both public and hazardous. Accordingly, we conclude that the court abused its discretion by granting the motion for a judgment of acquittal.

With regard to the public nature of the condition created by the defendant, the state presented evidence that, although the package was addressed to the president of the university, it was opened by Wendland, his secretary. Moreover, by the defendant’s own admission, she was aware that the president had an “open door policy” and encouraged students to visit his office. With regard to the hazardous nature of the condition, the state presented expert testimony that polymeric adhesives, like those used to glue together the items inside the package, can cause contact dermatitis “in many cases.” Based on the aforementioned reasons, we conclude that there is a reasonable view of the evidence that supports the jury’s verdict of guilty. Accordingly, the court abused its discretion by setting aside the verdict of the jury.

The judgment is reversed, and the case is remanded with direction to reinstate the jury’s verdict and to proceed to sentencing.

       The defendant did not file a timely appellate brief in either the direct appeal or on her cross appeal. Consequently, we have considered this matter on the basis of the state’s brief and the record only.


source: Caselaw Access Project

author: WEST, J.

license: Public Domain

text:
    BERNADETTA KACZYNSKI v. DARIUSZ KACZYNSKI
    (AC 28077)
    Gruendel, Alvord and West, Js.
    Argued February 11
    officially released September 28, 2010

      William F. Gallagher, with whom, on the brief, was Jacqueline F. Barbara, for the appellant (defendant).

      Richard C. Stewart, for the appellee (plaintiff).
   Opinion

WEST, J.

This matter is now before us on remand from our Supreme Court. The defendant, Dariusz Kaczynski, appealed from the judgment of the trial court dissolving his marriage to the plaintiff, Bemadetta Kaczynski. On appeal, the defendant claimed that the court improperly (1) found that the evidence was replete with fraudulent deeds without applying the required standard of proof to these findings, (2) made an alimony award that was not supported by evidence and the applicable law and (3) entered financial orders that unreasonably and disproportionately favor the plaintiff. See Kaczynski v. Kaczynski, 109 Conn. App. 381, 381-82, 951 A.2d 690 (2008), rev’d, 294 Conn. 121, 981 A.2d 1068 (2009). Specifically, the defendant claimed, inter alia, that the trial court “did not explicitly state or otherwise implicitly indicate whether the plaintiff had established by clear and convincing evidence that he had engaged in fraudulent transfers of property,” and, therefore, the court should not have considered those transfers when distributing the marital assets. Id., 386. The majority agreed, reasoning that, although the trial court’s findings had ample support in the evidence, that court nevertheless did not state what burden of proof it had applied when it concluded that the defendant had engaged in fraudulent transfers. Id., 390. The majority concluded that the trial court was required to indicate, either explicitly or implicitly, that the findings of fraudulent transfer had been made by clear and convincing evidence but had failed to do so, and, therefore, the trial court’s findings of fraud could not stand. Id., 393. Following the decision of this court, the plaintiff requested and was granted certification to appeal to our Supreme Court. See Kaczynski v. Kaczynski, 289 Conn. 929, 958 A.2d 158 (2008).

Our Supreme Court reversed the judgment of this court. In so doing, the court held: “When a trial court in a civil matter requiring proof by clear and convincing evidence fails to state what standard of proof it has applied, a reviewing court will presume that the correct standard was used.” Kaczynski v. Kaczynski, 294 Conn. 121, 130-31, 981 A.2d 1068 (2009). The Supreme Court remanded the case to this court with direction to address the remaining issues raised by the defendant’s appeal. Id., 132. After considering the defendant’s remaining claims on remand, we affirm the judgment of the trial court.

The following undisputed facts and procedural history are relevant to our resolution of the defendant’s remaining claims. “The plaintiff and the defendant, who were married on July 17, 1993, have three minor children: a son bom on February 15, 1996, and twin daughters bom on March 11, 1999. At the time of the marital dissolution hearing in June, 2006, the plaintiff was thirty-nine years of age and the defendant was forty-two. The plaintiff was bom and educated in Poland. She had attended college in Warsaw, Poland, for four years, and had attended Housatonic Community College in Bridgeport. She worked as a housecleaner until her first child was bom. At the time of the dissolution hearing she had been working, full-time, as an accounting assistant for one year, earning $428 per week.

“The defendant, at the time of the dissolution hearing, had worked for Sikorsky Aircraft Corporation for nineteen years, earning a salary of about $60,000 (gross) a year. In its memorandum of decision, the court found that the defendant was very skillful and had obtained a significant amount of income from self-employment, such as lawn maintenance and carpentry. The defendant had been hospitalized for depression and at the time of the dissolution hearing was being treated with medication and therapy.

“The plaintiff filed an amended complaint on May 9, 2006, seeking dissolution of the marriage and adding causes of action alleging that the defendant had engaged in fraudulent transfers of marital property with members of his family; however, she did not seek to add any additional parties as defendants. On July 3, 2006, the court rendered judgment dissolving the parties’ marriage on the ground of irretrievable breakdown, finding that the defendant caused the breakdown of the marriage. Although the court stated that the ‘evidence is replete with fraudulent transfers, false tax returns and property deeds devoid of truth,’ the court did not order a remedy to correct these fraudulent acts. Instead, the court issued several orders. The court ordered the defendant to pay child support to the plaintiff in the amount of $237 per week and to pay the plaintiff alimony in the amount of $250 per week for seven years. Additionally, the court ordered the defendant to provide the current insurance coverage for the children and to pay 60 percent of the children’s unreimbursed medical and dental expenses.

“With respect to the parties’ assets, the court found that the defendant ‘in complicity with his sisters sought to take financial advantage of the [plaintiff] by deceitfully clever means.’ The court considered the value of the assets that the defendant transferred to his sisters ‘as part of the marital assets’ in making its financial orders but did not create a constructive trust for these assets. The court ordered the defendant to transfer to the plaintiff by quitclaim deed the jointly owned residence located at 31 Winfield Drive in Shelton.

“The court also issued orders concerning the parties’ personal property. Those orders included a provision that the defendant’s pension plan and 401 (k) plan be divided equally. The court distributed the parties’ automobiles. The defendant was [awarded] the 1987 Ford pickup truck, the 1992 BMW and the 2006 Infiniti. The plaintiff was awarded the 1999 Honda. The court ordered that the plaintiff retain the household furnishings used by the plaintiff and the children and that the defendant retain any furniture that he had recently purchased. Additionally, the court ordered the defendant to contribute $25,000 to the plaintiff for attorney’s fees.

“On July 12, 2006, the defendant filed a motion to reargue, which the court subsequently granted. On September 14, 2006, the court modified its July 3, 2006 judgment. The court ordered that the plaintiff pay 58 percent of the children’s unreimbursed medical and dental expenses and that the defendant pay 42 percent. The court also ordered that instead of the defendant’s maintaining a $150,000 life insurance policy, he must maintain at least $81,000 in life insurance. The court vacated the household furnishings award and determined that the distribution of the furnishings would be arbitrated by attorney Stanley Goldstein. Last, the court stated that ‘the court’s orders in this case would be clearly undermined absent the award of attorney fees. Failure to award at least $25,000 in attorney fees will result in other necessary financial awards being affected.’ ” Kaczynski v. Kaczynski, supra, 109 Conn. App. 382-85.

Because the defendant’s remaining claims concern the trial court’s alimony and financial orders, initially we set out the applicable law and our well established standard of review. “A fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria. ... An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . This standard of review reflects the sound policy that the trial court has the opportunity to view the parties first hand and is therefore in the best position to assess all of the circumstances surrounding a dissolution action, in which such personal factors such as the demeanor and the attitude of the parties are so significant.” (Internal quotation marks omitted.) de Repentigny v. de Repentigny, 121 Conn. App. 451, 460, 995 A.2d 117 (2010).

I

The defendant first claims that the court improperly made an alimony award that was not supported by evidence and the applicable law. Specifically, the defendant argues that the record contained insufficient evidence to support an award of alimony when the plaintiff was earning more than she ever had previously. We disagree.

At the outset, we note that the court ordered the defendant to pay the plaintiff alimony in the amount of $250 per week for seven years. It is well settled that “[i]n dissolution proceedings, the court must fashion its financial orders in accordance with the criteria set forth in General Statutes §§ 46b-81 (division of marital property), 46b-82 (alimony) and 46b-84 (child support). All three statutory provisions require consideration of the parties’ amount and sources of income in determining the appropriate division of property and size of any child support or alimony award.” (Internal quotation marks omitted.) Rozsa v. Rozsa, 117 Conn. App. 1, 5, 977 A.2d 722 (2009). General Statutes § 46b-82 provides in relevant part: “In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81. . . .” “[Section] 46b-82 describes circumstances under which a court may award alimony. The court is to consider these factors in making an award of alimony, but it need not give each factor equal weight. ... As long as the trial court considers all of these statutory criteria, it may exercise broad discretion in awarding alimony.” (Internal quotation marks omitted.) McMellon v. McMellon, 116 Conn. App. 393, 397, 976 A.2d 1, cert. denied, 293 Conn. 926, 980 A.2d 911 (2009). We note also that “[t]he trial court may place varying degrees of importance on each criterion according to the factual circumstances of each case.” Ippolito v. Ippolito, 28 Conn. App. 745, 751, 612 A.2d 131, cert. denied, 224 Conn. 905, 615 A.2d 1047 (1992). “There is no additional requirement that the court specifically state how it weighed the statutory criteria or explain in detail the importance assigned to each statutory factor.” Rivnak v. Rivnak, 99 Conn. App. 326, 331, 913 A.2d 1096 (2007).

In the present case, in its memorandum of decision, the court articulated that all of the evidence was considered, as well as the provisions of § 46b-82. Furthermore, on the basis of our review of the record, we conclude that the court’s findings that underpin its alimony award were supported by the record. The court found that the defendant was skilled and industrious, generating a significant amount of income from carpentry and landscape side jobs that augmented his salary from Sikorsky. The court also found that the defendant was both physically and emotionally abusive to the plaintiff. It further found that his conduct was “both conspicuously offensive and flagrant and [was] the sole cause for the breakdown of the marriage.” See Sapper v. Sapper, 109 Conn. App. 99, 100, 951 A.2d 5 (2008) (cause of dissolution one of statutory factors to be considered in fashioning financial orders). The court further found that the defendant had “artfully disguised his assets so that a substantial portion of his equitable estate has been reduced” and, therefore, had taken financial advantage of the plaintiff by manipulating his assets to reduce his estate available for distribution. See Watson v. Watson, 221 Conn. 698, 708-709, 607 A.2d 383 (1992) (trial court in dissolution action may properly consider as part of marital estate property that has been fraudulently transferred even though court has chosen not to set aside transfer).

Given the court’s findings, which were supported by evidence in the record, we cannot conclude that the court abused its discretion in issuing an alimony order of $250 per week for seven years. The court properly exercised its discretion in fashioning an alimony award that was supported by evidence and the applicable law.

II

Last, the defendant claims that the court improperly entered financial orders that unreasonably and disproportionately favor the plaintiff. Specifically, the defendant argues that in awarding the plaintiff the full value of the appreciation of the marital home, one half of the defendant’s retirement benefits and $40,000 in cash for the purchase of a new vehicle, the court abused its discretion. We disagree.

As noted previously, a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria. See de Repentigny v. de Repentigny, supra, 121 Conn. App. 460; see also part I of this opinion. “In fashioning its financial orders, the court has broad discretion, and [j]udiciai review of a trial court’s exercise of [this] broad discretion ... is limited to the questions of whether the . . . court correctly applied the law and could reasonably have concluded as it did. ... In making those determinations, we allow every reasonable presumption ... in favor of the correctness of [the trial court’s] action. . . . That standard of review reflects the sound policy that the trial court has the unique opportunity to view the parties and their testimony, and is therefore in the best position to assess all of the circumstances surrounding a dissolution action, including such factors as the demeanor and the attitude of the parties.” (Citation omitted; internal quotation marks omitted.) Mann v. Miller, 93 Conn. App. 809, 812, 890 A.2d 581 (2006). “General Statutes § 46b-81 (c) directs the court to consider numerous separately Usted criteria. No language of presumption is contained in the statute. Indeed, § 46b-81 (a) permits the farthest reaches from an equal division as is possible, allowing the court to assign to either the husband or wife all or any part of the estate of the other.....On the basis of the plain language of § 46b-81, there is no presumption in Connecticut that marital property should be divided equally prior to applying the statutory criteria.” (Internal quotation marks omitted.) Rivnak v. Rivnak, supra, 99 Conn. App. 332. Mindful of these principles, we conclude that the defendant’s claim has no merit.

In addressing its financial orders, the court noted that it had considered all the evidence, as well as the provisions of § 46b-81, and found that, “[a]fter six days of trial, [it was] satisfied that the [defendant] sought to take financial advantage of the [plaintiff] by deceitfuUy clever means.” The court also found that the defendant had “artfully disguised his assets so that a substantial portion of his equitable estate [had] been reduced [and, therefore, although] this judgment may appear lopsided ... a close look at [the defendant’s] machinations will make the result transparent.” The court then set out, in detail, its findings concerning the defendant’s “nefarious dealings.”

Upon our thorough review of the record, we conclude that the financial orders fashioned were well within the court’s broad discretionary power. We cannot say that the court’s orders concerning the financial plan as a whole disproportionately favored the plaintiff. To the contrary, given the court’s findings concerning the defendant’s conduct both during the marriage and in anticipation of its dissolution, the amount of the defendant’s earnings, the total value of their marital assets and the fact that the defendant was the cause of the marital breakdown, the financial orders are within the court’s broad discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       Because this court resolved the defendant’s first claim in his favor, we did not reach Ms other claims concerning the trial court’s financial orders. Kaczynski v. Kaczynski, supra, 109 Conn. App. 382 n.1.

       Our Supreme Court continued: “If a party, following the rendering of the trial court’s judgment, believes that the trial court potentially utilized the less stringent standard of preponderance of the evidence, that party has the burden of seeking an articulation if the decision is unclear; see Practice Book § 66-5; or reargument if impropriety is apparent; see Practice Book § 11-12; thus giving that court the opportumty to clarify the standard used or to correct the impropriety and thereby avoiding an unnecessary appeal. If, instead, the party forgoes articulation or reargument and instead chooses to raise the issue for the first time on appeal, the reviewing court will not presume error from silence as to the standard used. Consequently, if it is not otherwise clear from the record that an improper standard was applied, the appellant’s claim will fail on the basis of inadequate support in the record.” Kaczynski v. Kaczynski, 294 Conn. 121, 131, 981 A.2d 1068 (2009).

       The defendant also argues that the court relied improperly on its finding that the defendant filed “false tax returns” in fashioning its alimony award because the defendant filed joint returns with the plaintiff during their marriage. We reject this argument. In so doing, we reiterate that “[i]t is within the province of the trial court, when sitting as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence.” (Internal quotation marks omitted.) DuBaldo Electric, LLC v. Montagno Construction, Inc., 119 Conn. App. 423, 444, 988 A.2d 351 (2010).

       The court found that the defendant’s “nefarious dealings [started] with the 95 Park Avenue, Shelton property. [The defendant’s] mother testified that she conveyed one half ... of her home at 95 Park Avenue in Shelton to . . . [the defendant] and two daughters, Boguslawa [Foldy] and Danuta [Salek], but that the defendant conveyed his interest back to his two sisters when [his] marriage disintegrated in March, 2005. . . . Salek now owns 95 Park Avenue with . . . Foldy. . . . Based on all of the testimony there can be no misunderstanding other than the 95 Park Avenue property was reconveyed to the sisters by the defendant with the hope that [the] defendant’s interest would not be considered as part of his [marital] estate. [The defendant’s] one-third interest is valued at $100,000.
      “The other transactions [of concern] are less transparent. The court finds that the defendant and his two sisters lack credibility. . . . The . . . parties’ home became joint after the birth of the first child. It [was] stipulated that the value [at the time of the judgment was] $375,000. There are no encumbrances hereon. [The defendant] testified that this asset was offset by a loan of $100,000 from his sister. His claim that he still owes $100,000 some seventeen years later is not worthy of belief.
      “The court [was] also satisfied that the [defendant] had an ownership interest in property located at 1351 Huntington Turnpike, Trumbull. It was purchased in his name only on September 10, 1996, held in his name for eight years before he transferred half of it for no consideration and which was then sold by him and his niece for $349,000, without any mortgage. He claims the property was really his sister Maria’s, a factory worker. This property was the subject of a foreclosure action, the file in the foreclosure action indicates a dogged and determined effort by the [defendant] to acquire this property. At the time he deeded his interest in this property, the [defendant] obtained at least $160,000.
      “In addition, in 2005, when the parties’ marital difficulties hit fever pitch, $163,000 was withdrawn from the parties’joint Webster savings account [of which] $100,000 was given to [the defendant’s] sister Maria, and $52,305.94 [was used] to purchase an Infiniti presently listed on the [defendant’s] affidavit as being owned by him.”


author: FLYNN, C. J.

text:
    THOMAS HEALEY v. HAWKEYE CONSTRUCTION, LLC, ET AL.
    (AC 30894)
    Flynn, C. J., and Alvord and West, Js.

    Argued March 18
    officially released October 5, 2010

      Sean C. Donohue, for the appellant (plaintiff).

      Robert K. John, for the appellees (defendants).

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

   Opinion

FLYNN, C. J.

This case presents the question, addressed by our Supreme Court in Burse v. American International Airways, Inc., 262 Conn. 31, 808 A.2d 672 (2002), of when Connecticut law applies to a plaintiffs claim for workers’ compensation benefits. In Burse, our Supreme Court clarified that for the law of this state to apply to a claim for such benefits requires, “at a minimum, a showing of a significant relationship between Connecticut and either the employment contract or the employment relationship.” Id., 38-39. Applying this rule to the circumstances of the present case, we hold that because the employment contract between the plaintiff employee, who at all relevant times was a resident of this state, and the defendant employer was formed in Connecticut, this state possessed a significant relationship to that contract. Accordingly, Connecticut law properly may be applied to the plaintiffs benefits claim. We reverse the decision of the workers’ compensation review board (board), which was to the contrary.

The workers’ compensation commissioner for the second district (commissioner) found the following facts. The plaintiff, Thomas Healey, at all relevant times a resident of Connecticut, was an electrician and a member of the International Brotherhood of Electrical Workers’ Union, Local 104, in Boston. In September, 2004, the plaintiff received in Connecticut a telephone call from his union hall indicating that the defendant, Hawkeye Construction, LLC, a utility construction company located in Hauppauge, New York, was looking for workers to travel to Florida to repair hurricane damage. The plaintiff was told that he was to contact the defendant if he was interested in a position. The plaintiff, from Connecticut, telephoned the defendant in New York. During the telephone call, the defendant offered the plaintiff a position of employment in Florida, which offer the plaintiff accepted, and the defendant thereafter held a spot for the plaintiff.

The plaintiff and the defendant provided the commissioner with conflicting testimony as to the relationship between the parties following the telephone call. The plaintiff testified that it was his understanding that he was to be paid by the defendant from the time the telephone call was completed. Charles A. Gravina, a vice president of the defendant, testified that in such situations, the defendant holds a position open for a union member but that the member is not paid for his travel time to the defendant’s premises and is paid only from the time he arrives. Gravina further testified that union members are not promised employment until they arrive at the defendant’s premises. He also stated that he was unaware of any union member who had had a spot held for him being denied employment after arriving at the defendant’s premises.

It was undisputed that after the telephone call was completed, the plaintiff traveled immediately from Connecticut to the defendant’s office on Long Island. Upon his arrival in New York, the plaintiff completed a “ ‘new hire packet’ ” that included payroll and safety information, received protective equipment and was assigned to a crew. On November 8, 2004, while in Florida, the plaintiff suffered a compensable injury to his knee that arose out of and during the course of his employment with the defendant. On July 8, 2005, the plaintiff filed a claim for workers’ compensation benefits in Connecticut.

The commissioner concluded that “[a]n employment contract between the [plaintiff] and the [defendant] was formed and consummated during the [plaintiffs] telephone call from Connecticut to the [defendant] in New York.” However, he further found that the plaintiff was not paid for his travel from Connecticut to New York and that his employment did not commence, and he did not begin to receive wages, until he arrived at the defendant’s facility in New York and completed employment paperwork. Finally, the commissioner concluded that the plaintiffs employment relationship with the defendant took place exclusively outside of Connecticut and that the plaintiff had failed to sustain his burden of proof that there was a “substantial” relationship between Connecticut and the employment contract. On the basis of these conclusions, the commissioner held that Connecticut law did not apply to the plaintiffs claim and that the workers’ compensation commission, therefore, lacked jurisdiction to award compensation benefits to the claimant. Following a motion to correct filed by the plaintiff, which the commissioner denied in part and granted in part, the plaintiff appealed to the board, which affirmed the decision of the commissioner. The plaintiff then appealed to this court.

The plaintiffs principal claim on appeal is that the board improperly affirmed the decision of the commissioner that Connecticut law did not apply to the plaintiffs claim for workers’ compensation benefits. He maintains that under our Supreme Court’s holding in Burse v. American International Airways, Inc., supra, 262 Conn. 31, Connecticut law may be applied to his benefits claim because the state had a significant relationship to his employment contract with the defendant. We agree.

We begin by setting forth the following standard of review and principles of law that underlie the plaintiffs claim. “The purpose of the [workers’] compensation statute is to compensate the worker for injuries arising out of and in the course of employment, without regard to fault, by imposing a form of strict liability on the employer. . . . The Workers’ Compensation Act [General Statutes § 31-275 etseq.] compromise[s] an employee’s right to a common law tort action for work related injuries in return for relatively quick and certain compensation.” (Citation omitted; internal quotation marks omitted.) Panaro v. Electrolux Corp., 208 Conn. 589, 598-99, 545 A.2d 1086 (1988). The act “indisputably is a remedial statute that should be construed generously to accomplish its purpose. . . . The humanitarian and remedial purposes of the act counsel against an overly narrow construction that unduly limits eligibility for workers’ compensation.” (Citations omitted; internal quotation marks omitted.) Blakeslee v. Platt Bros. & Co., 279 Conn. 239, 245, 902 A.2d 620 (2006). Further, our Supreme Court has recognized that the state of Connecticut “has an interest in compensating injured employees to the fullest extent possible . . . .” (Internal quotation marks omitted.) Burse v. American International Airways, Inc., supra, 262 Conn. 37, quoting McGowan v. General Dynamics Corp., 15 Conn. App. 615, 622, 546 A.2d 893 (1988), aff'd, 210 Conn. 580, 556 A.2d 587 (1989).

“[Wjhen a decision of a commissioner is appealed to the . . . [board], the . . . [board] is obligated to hear the appeal on the record of the hearing before the commissioner and not to retry the facts. ... It is the power and the duty of the commissioner, as the trier of fact, to determine the facts. . . . [T]he commissioner is the sole arbiter of the weight of the evidence and the credibility of witnesses .... The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . [T]he decision of the [board] must be correct in law, and it must not include facts found without evidence or fail to include material facts which are admitted or undisputed.” (Internal quotation marks omitted.) Mele v. Hartford, 118 Conn. App. 104, 107-108, 983 A.2d 277 (2009).

In Cleveland v. U.S. Printing Ink, Inc., 218 Conn. 181, 588 A.2d 194 (1991), the Supreme Court considered whether Connecticut law would apply to a claim for benefits by a resident of another state working for an out-of-state corporation. The plaintiff in Cleveland, a resident of New Jersey, was injured in the course of his employment in Connecticut, where he spent 35 to 40 percent of his employment time for the named defendant, a New Jersey corporation. Id., 182-83. After successfully applying for workers’ compensation benefits in New Jersey, the plaintiff filed a claim for benefits in Connecticut. Id., 182. The commissioner ordered the defendant to accept liability for the plaintiffs injury, concluding that the latter had “enough significant contacts with this state and . . . therefore Connecticut [had] an interest in applying its statutes for the protection of working men injured within its borders.” (Internal quotation marks omitted.) Id., 183. The board and this court affirmed the decision of the commissioner. Id.

On appeal, our Supreme Court first clarified that “the question of whether one state will award supplemental workers’ compensation benefits to a claimant who previously received benefits under the laws of another state is more appropriately deemed a question of conflict of laws” than a matter of subject matter jurisdiction. Id., 187. Noting this state’s “interest in compensating injured employees to the fullest extent possible”; (internal quotation marks omitted) id., 194; the court stated that “[r]egardless of where an employee first seeks an award of benefits, he or she is entitled to the maximum amount allowed to an individual under either comprehensive legislative scheme.” (Internal quotation marks omitted.) Id. Applying a conflict of laws analysis, the court held that “[t]he remedial purpose of our Workers’ Compensation Act supports application of its provisions in cases [in which] an injured employee seeks an award of benefits and Connecticut is the place of the injury, the place of the employment contract or the place of the employment relation.” Id., 195. Our Supreme Court affirmed the judgment of this court, concluding that because the plaintiff had sustained an employment related injury in this state, it was appropriate to apply Connecticut law to his claim for benefits. Id.

Our Supreme Court in Burse v. American International Airways, Inc., supra, 262 Conn. 31, revisited and clarified the test set forth in Cleveland for determining whether application of Connecticut law to a claim for workers’ compensation benefits is appropriate. The plaintiff in Burse resided in Connecticut and was employed as an airline pilot by the named defendant, a freight carrier based in Michigan. Id., 33. The defendant had minimal business contacts with Connecticut, and the plaintiffs employment duties took place in the state infrequently. Id., 39-40. After his work-related injury during a flight over the Midwest, the plaintiff filed for workers’ compensation benefits in Connecticut. Id., 34. Determining that Connecticut was both the place of the plaintiffs employment and the place of the employment contract, the commissioner concluded that the plaintiff was entitled to benefits. Id., 35. The board affirmed the decision of the commissioner. Id.

Our Supreme Court reversed the decision of the board on appeal. Id., 45. Prior to addressing the merits of the defendant’s claims, the court reviewed the test set forth in Cleveland and clarified that a claimant seeking workers’ compensation benefits in this state must make, “at a minimum, a showing of a significant relationship between Connecticut and either the employment contract or the employment relationship.” (Emphasis in original.) Id., 38-39. With regard to the relationship between the plaintiff and the defendant, the court concluded that there was insufficient record evidence to support the commissioner’s conclusion that Connecticut was the place of the employment relationship. Id., 39-40.

In the present case, there is no claim that Connecticut was the place of the employment relationship between the plaintiff and the defendant. Rather, the plaintiff claims that the circumstances surrounding the formation of his employment contract with the defendant were sufficient under Burse to warrant application of Connecticut law to his claim for workers’ compensation benefits. We, therefore, must examine closely the Burse court’s discussion and holding applying the place of the employment contract prong of the test.

In Burse, the plaintiff received a telephone call at his home in Connecticut from the defendant’s chief pilot asking him to fly to Michigan to meet with the defendant’s representatives about a position of employment. Id., 41. The plaintiff testified that he believed that he actually had been offered employment during the telephone conversation and that the purpose of the flight to Michigan merely was to allow the defendant to confirm his credentials. Id. The plaintiff flew to Michigan and met with the defendant’s director of operations to whom the plaintiff presented his pilot credentials and discussed compensation and benefits. Id. No employment papers were signed either prior to or after this meeting. Id. The plaintiff testified that the defendant later withdrew the offer of employment because it anticipated losing the airplane intended for the plaintiff. Id. The defendant again called the plaintiff in Connecticut approximately one week later. Id. The plaintiffs wife answered the call because the plaintiff at the time was in Michigan training with a different air cargo company. Id., 41-42. She subsequently contacted the plaintiff, informing him that the defendant wanted to see him. Id., 42. The plaintiff testified that he met again with the defendant’s representatives in Michigan and that during this meeting he officially became an employee of the defendant. Id. The commissioner concluded that the plaintiff was hired during the initial telephone call he had received from the defendant and that, therefore, Connecticut was the place of the employment contract. Id., 41. The board on appeal noted the inconsistencies in the plaintiffs testimony but concluded that they were explained by the fact that the testimony concerning the meetings in Michigan referred only to formalization of the contract. Id.

In analyzing whether Connecticut was the place of the employment contract, the Burse court acknowledged that a contract had been formed between the plaintiff and the defendant but stated that its “concern is with when and where the contract was formed.” (Emphasis in original.) Id., 42. The plaintiffs testimony that he believed a contract was formed during his initial telephone call with the defendant, according to the court, was undermined expressly by his later testimony that the offer had been withdrawn. Id., 43. The court concluded that the meetings between the plaintiff and the defendant in Michigan did not pertain to formalization but, rather, to formation of the contract. Id., 44. The court stated: “Because the pertinent employment contract was not formed during [the defendant’s] first telephone call to the plaintiff in Connecticut, we conclude that the . . . board improperly determined that the commissioner’s conclusion that Connecticut was the place of the employment contract was supported by evidence in the record. The relevant employment contract was not formed in Connecticut; therefore, Connecticut cannot have a significant relationship to that contract.” Id., 44-45.

We initially consider whether, in the present case, the contract between the plaintiff and the defendant was formed in Connecticut. The commissioner did not make a finding as to the place the contract was formed. However, he did find that during the telephone call between the parties, the defendant, in New York, offered to the plaintiff, who was in Connecticut, a position of employment, which offer the plaintiff accepted. Professor Corbin, in discussing telephonic communications of offers and acceptances, states that in such instances, the place of the contract “has been held to be the place at which the offeree speaks the words of acceptance into the telephone transmitter.” 1 A. Corbin, Contracts (Rev. Ed. 1993) § 3.25, p. 447. See also 1 Restatement (Second), Contracts § 64, comment (c), p. 158 (1981) (noting in cases where contract is made by telephone “the contract is created at the place where the acceptor speaks or otherwise completes his manifestation of assent”). Applying this principle to the present case, we conclude that the employment contract was formed in Connecticut, as the plaintiff expressed his words of acceptance here.

The commissioner, considering the record evidence adduced by the parties, concluded that the plaintiff did not meet his burden of demonstrating that there was a “substantial” relationship between Connecticut and the employment contract between the plaintiff and the defendant. The commissioner concluded that the plaintiff “did not commence his employment with the [defendant] and did not begin to earn wages until he arrived at the [defendant’s] facility in New York and employment paperwork was completed.” However, the commissioner also found that “[a]n employment contract between the [plaintiff] and the [defendant] was formed and consummated during the [plaintiffs] telephone call from Connecticut to the [defendant] in New York.” These findings of fact by the commissioner, along with his finding that the plaintiff at all relevant times was a resident of Connecticut, are not disputed, and we do not disturb them on appeal. However, the commissioner’s conclusion that there was no significant relationship between Connecticut and the contract was a conclusion of law over which our review is plenary. Applying the rule clarified by our Supreme Court in Burse, we conclude that the commissioner’s conclusion of law was incorrect. We hold that the formation of the employment contract in Connecticut, between the plaintiff resident of this state and the defendant out-of-state employer, provided a sufficient basis for application of this state’s law to the plaintiffs claim for workers’ compensation benefits. The Burse court noted that in analyzing whether this state was the place of the contract, the court’s “concern is with when and where the contract was formed.” (Emphasis in original.) Burse v. American International Airways, Inc., supra, 262 Conn. 42. Absent from the opinion in Burse is any discussion concerning commencement of the plaintiffs employment or when the plaintiff began to earn wages. Here, the commissioner’s findings demonstrate that the contract was formed during the telephone conversation between the plaintiff, who was in Connecticut, and the defendant in New York.

In the recent case of Jaiguay v. Vasquez, 287 Conn. 323, 331, 948 A.2d 955 (2008), our Supreme Court delineated and compared the proper conflicts analysis for two types of claims arising in the workers’ compensation context: those involving a claimant who has been awarded compensation benefits and seeks damages in tort under an exception to the exclusivity provisions of the workers’ compensation act and those seeking workers’ compensation benefits alone. As to tort claims, the court clarified that the appropriate choice of law approach is the “most significant relationship test” of the Restatement (Second) of Conflict of Laws, §§ 6 and 145. Jaiguay v. Vasquez, supra, 347-51. This analysis is fitting because “the choice of law question [in such cases] is not which state among one or more other states has a sufficient interest in having its statutes invoked for the benefit of the employee. The issue, rather, is which state’s law, to the exclusion of the law of all other potentially interested states, is the governing or controlling law.” (Emphasis in original.) Id., 347. As to the second category of claims, those seeking workers’ compensation benefits in this state, the court, after reviewing its relevant prior opinions including Cleveland and Burse, stated that “the choice of law question posed by a claim for workers’ compensation benefits in this state is not whether Connecticut has the most significant relationship to or interest in the matter but, rather, whether Connecticut’s relationship or interest is sufficiently significant to warrant an award of benefits under its workers’ compensation statutes.” (Emphasis in original.) Id., 346. In the present case, the plaintiffs claim was for workers’ compensation benefits under our state’s law and not a claim sounding in tort. Therefore, the plaintiffs burden was to demonstrate a significant relationship between Connecticut and the employment contract between the plaintiff and the defendant, not that this state had the most significant relationship to the contract. Applying the foregoing precedent, particularly that of Burse, to the facts of this case, we conclude that this state’s relationship to the employment contract, Connecticut being both the place of the plaintiffs residence and the place of the contract’s formation, was sufficiently significant such that Connecticut law may be applied to the plaintiffs claim for workers’ compensation benefits.

The decision of the compensation review board is reversed and the case is remanded to the board with direction to reverse the commissioner’s decision, and to remand the case to the commissioner for further proceedings according to law.

In this opinion the other judges concurred.

       Gallagher Bassett Claims Services, Inc., is also a defendant in this case. For convenience, we refer to Hawkeye Construction, LLC, as the defendant.

       The parties stipulated before the commissioner that the plaintiffs claim for workers’ compensation benefits, arising out of the same injury, had been accepted in New York prior to his application for benefits in Connecticut. We note that the plaintiff is not thereby precluded from seeking benefits in Connecticut, as “depending on the facts and circumstances of the work-related injury and the nature and place of the employment contract and relationship, more than one state may have a legitimate interest in having an injured employee compensated under the applicable workers’ compensation statutes. See, e.g., Cleveland v. U.S. Printing Ink, Inc., [218 Conn. 181, 182, 195, 588 A.2d 194 (1991)] (upholding award of benefits in this state after claimant already had received benefits in another state) . . . .” (Citation omitted.) Jaiguay v. Vasquez, 287 Conn. 323, 346, 948 A.2d 955 (2008).

       The commissioner’s original finding and dismissal stated that “[a]n employment contract between the [plaintiff] and the [defendant] was consummated during the [plaintiffs] telephone call from Connecticut to the [defendant] in New York.” The plaintiff moved to correct the finding to read that the contract “was formed and consummated” during the telephone call. The commissioner granted the motion as to this claimed correction.

       The plaintiff also claims that the board improperly affirmed the commissioner’s decision denying a portion of the plaintiff’s motion to correct concerning the plaintiff’s claim that the defendant was, in fact, a Connecticut employer at the time the plaintiff and the defendant entered into the employment contract. Because our resolution of the plaintiff’s principal claim is dispositive of his appeal, we do not address this second claim.


author: GRUENDEL, J.

text:
    SIRIWAT SINGHAVIROJ v. BOARD OF EDUCATION OF THE TOWN OF FAIRFIELD ET AL.
    (AC 30626)
    DiPentima, C. J., and Gruendel and Hennessy, Js.

      Argued May 24
    officially released October 5, 2010

      Michael J. Rose, with whom, on the brief, was Johanna G. Zelman, for the appellants (defendants).

      John T. Bochanis, for the appellee (plaintiff).
   Opinion

GRUENDEL, J.

In this most unusual of summary judgment cases, the defendants, the town of Fairfield (town), the board of education of the town of Fairfield (board) and certain employees thereof, appeal from the judgment of the trial court denying their motions for a continuance of trial and summary judgment against the plaintiff, Siriwat Smghaviroj. The defendants claim that the court (1) improperly denied their motions for summary judgment without determining whether a genuine issue of material fact existed with respect to their res judicata and collateral estoppel defenses and (2) abused its discretion in declining to grant a continuance of trial. We agree with the defendants’ first claim and, accordingly, reverse the judgment of the trial court.

Mindful of the procedural posture of this case, we set forth the following facts as gleaned from the pleadings, affidavits and other proof submitted, viewed in a light most favorable to the plaintiff. The plaintiff was employed by the board as a senior field engineer in the information technology department. In May, 2003, an investigation was conducted concerning certain problems and disruptions involving the board’s computer network that, following aseries of hearings, culminated in the plaintiffs termination from employment on April 8, 2004.

In March, 2005, the plaintiff filed an action (first action) against the town, the board, Howard Zwickler and Margaret Mary Fitzgerald alleging that he was denied equal protection and due process of law with respect to the investigation and termination proceedings. In April, 2005, the plaintiff commenced the present action for, inter alia, wrongful discharge. At the defendants’ request, the two actions were consolidated by the court on February 7, 2006, pursuant to Practice Book § 9-5. The defendants subsequently filed a motion to strike, which the court granted in part by memorandum of decision filed October 25, 2007. A month and a half later, the court granted the defendants’ motion to strike the first action in its entirety. When the plaintiff did not replead, the court on March 10, 2008, rendered judgment in favor of the defendants on the first action.

In April, 2008, with the permission of the court, the defendants moved for summary judgment, alleging, inter alia, that the plaintiffs remaining claims were barred by the doctrine of res judicata and that the plaintiffs breach of contract claim was barred by the doctrine of collateral estoppel. The court heard argument on the defendants’ motions for summary judgment on December 8, 2008, at which time the court noted that trial on the matter was to begin on January 15, 2009. After confirming that the presiding judge would not grant a continuance of trial, the court summarily denied the defendants’ motions. It stated: “I’m going to deny the motions for summary judgment, but I’m not making any findings that there are, in fact, issues of material fact. I’m denying them because there is insufficient time. . . for the court to make that determination. . . . I’m going to deny all of the motions for summary judgment . . . without making any express findings, just that there is insufficient time to review the submissions and to do justice to all the various counts between now and the trial date.” From that determination, the defendants appeal.

I

A

The defendants’ primary contention is that the court improperly denied their motions for summary judgment without determining whether a genuine issue of material fact existed. As a threshold matter, the plaintiff argues that the lack of a final judgment deprives this court of jurisdiction to consider that contention.

“The lack of [a] final judgment . . . implicates the subject matter jurisdiction of this court. ... If there is no final judgment, we cannot reach the merits of the appeal.” (Internal quotation marks omitted.) Children’s School, Inc. v. Zoning Board of Appeals, 66 Conn. App. 615, 618, 785 A.2d 607, cert. denied, 259 Conn. 903, 789 A.2d 990 (2001). Under Connecticut law, “[t]he denial of a motion for summary judgment ordinarily is an interlocutory ruling and, accordingly, not a final judgment for purposes of appeal.” Chadha v. Charlotte Hungerford Hospital, 272 Conn. 776, 785, 865 A.2d 1163 (2005). Nevertheless, in Convalescent Center of Bloomfield, Inc. v. Dept. of Income Maintenance, 208 Conn. 187, 544 A.2d 604 (1988), our Supreme Court held that the denial of a claim for collateral estoppel was “ripe for immediate appellate review.” Id., 194. The court explained that “to postpone appellate review and to require further exhaustion of administrative remedies would defeat the very purpose that collateral estoppel is intended to serve. [T]he basic proposition . . . has always been essentially the same: A party should not be allowed to relitigate a matter that it already had opportunity to litigate. . . . [T]he defense of collateral estoppel is a civil law analogue to the criminal law’s defense of double jeopardy, because both invoke the right not to have to go to trial on the merits. Like the case of a denial of a criminal defendant’s colorable double jeopardy claim, where immediate appealability is well established ... [a] judgment denying [a] claim of collateral estoppel is a final judgment.” (Citations omitted; internal quotation marks omitted.) Id., 194-95; see also Lafayette v. General Dynamics Corp., 255 Conn. 762, 763-64 n.1, 770 A.2d 1 (2001). That precept applies to the doctrine of res judicata with equal force. See Cayer v. Komertz, 91 Conn. App. 202, 203 n.2, 881 A.2d 368 (2005); Milford v. Andresakis, 52 Conn. App. 454, 455 n.1, 726 A.2d 1170, cert. denied, 248 Conn. 922, 733 A.2d 845 (1999).

In the present case, the defendants in their respective motions for summary judgment raised colorable claims that the plaintiffs claims were barred by the doctrine of res judicata and that the plaintiffs breach of contract claim was barred by collateral estoppel. The denial thereof is an appealable final judgment.

B

In the present case, the defendants twice filed an answer and special defenses. On January 27, 2006, the defendants pleaded nine special defenses and on December 13, 2007, they pleaded eleven special defenses in response to the plaintiffs April 5, 2007 amended complaint. The defendants did not specifically plead res judicata or collateral estoppel as an affirmative defense. Rather, they raised those defenses for the first time in their respective motions for summary judgment.

It is well established that res judicata and collateral estoppel are affirmative defenses that may be waived if not properly pleaded. See, e.g., Wilcox v. Webster Ins., Inc., 294 Conn. 206, 222, 982 A.2d 1053 (2009) (“ [collateral estoppel is an affirmative defense that may be waived if not properly pleaded”); Anderson v. Latimer Point Management Corp., 208 Conn. 256, 263, 545 A.2d 525 (1988) (res judicata “a legal doctrine which must be specially pleaded”); Gaer Bros., Inc. v. Mott, 144 Conn. 303, 310, 130 A.2d 804 (1957) (“[r]es judicata must be pleaded in an answer as a special defense”); Sydoriak v. Zoning Board of Appeals, 90 Conn. App. 649, 657, 879 A.2d 494 (2005) (collateral estoppel claim deemed waived due to failure to plead it as special defense); Carnese v. Middleton, 27 Conn. App. 530, 537, 608 A.2d 700 (1992) (“[c]ollateral estoppel, like res judicata, must be specifically pleaded by a defendant as an affirmative defense”); cf. Practice Book § 10-50 (“res judicata must be specially pleaded” as defense). The defendants failed to comply with that requirement.

That is not to say that the defendants are foreclosed from pursuing such a defense in every instance. As this court explained years ago, “[t]here is, however, an exception to this general rule. The defendants’ failure to file a special defense may be treated as waived where the plaintiff fails to make appropriate objection to the evidence and argument offered in support of that defense. See Tedesco v. Stamford, 215 Conn. 450, 462-63, 576 A.2d 1273 (1990); Pepe v. New Britain, 203 Conn. 281, 286, 524 A.2d 629 (1987).” Carnese v. Middleton, supra, 27 Conn. App. 537. In Camese, we concluded that the defendants’ failure to file a special defense was waived “because the plaintiff did not object to the dismissal on that ground, even after the defendants claimed that collateral estoppel required a dismissal.” Id. We reach a similar conclusion in the present case, as the plaintiff at no time objected on the ground of the defendants’ failure to properly plead their res judicata and collateral estoppel defenses. To the contrary, the plaintiff argued the merits of those defenses in his opposition to the motions for summary judgment and at oral argument thereon. Thus, despite the defendants’ failure to specially plead those defenses, the court properly could consider them in deciding the motions for summary judgment.

C

Turning our attention to the merits of the defendants’ claim, we agree with the defendants’ central contention that the court improperly denied their motions for summary judgment without determining whether a genuine issue of material fact existed with respect to their res judicata and collateral estoppel defenses. We disagree as to the basis for that conclusion.

Practice Book § 17-44 provides in relevant part that “[t]he pendency of a motion for summary judgment shall delay trial only at the discretion of the trial judge.” In matters vested to the discretion of the court, our appellate courts must “make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” (Internal quotation marks omitted.) Stokes v. Norwich Taxi, LLC, 289 Conn. 465, 493, 958 A.2d 1195 (2008). The defendants ask us to conclude that the trial court’s refusal to decide the merits of their motions for summary judgment in their entirety constituted an abuse of discretion in light of the procedural history of this litigation, despite the fact that trial was scheduled to begin in approximately one month. We decline to do so. In light of the ample discretion afforded a trial judge in determining whether a pending motion for summary judgment shall delay trial and the particular facts of this case, we cannot say that the court abused its discretion in refusing to decide the merits of the defendants’ motions for summary judgment in their entirety.

At the same time, the teaching of Convalescent Center of Bloomfield, Inc., and its progeny compel a different result with respect to the defendants’ res judicata and collateral estoppel defenses. We reiterate that “[a] party should not be allowed to relitigate a matter that it already had opportunity to litigate. . . . [T]he defense of collateral estoppel is a civil law analogue to the criminal law’s defense of double jeopardy, because both invoke the right not to have to go to trial on the merits. Like the case of a denial of a criminal defendant’s color-able double jeopardy claim, where immediate appeal-ability is well established ... [a] judgment denying [a] claim of collateral estoppel is a final judgment.” (Citations omitted; internal quotation marks omitted.) Convalescent Center of Bloomfield, Inc. v. Dept. of Income Maintenance, supra, 208 Conn. 194-95. Thus, the denial of a claim for collateral estoppel or res judicata is immediately appealable. Id.; Milford v. Andresakis, supra, 52 Conn. App. 455 n.l. The foregoing precedent would be frustrated, if not altogether undermined, by permitting a trial court faced with a motion for summary judgment to decline to pass on the question of whether those defenses bar relitigation of a given matter. If the denial of a preclusion claim is of such import that the commencement of trial must yield to appellate review of that determination, logic dictates that it similarly must yield to a determination of whether summary judgment, when properly presented, is appropriate on that ground. Because a res judicata or collateral estoppel claim is the “civil law analogue” to a double jeopardy challenge, a court faced with such a claim must resolve that question before trial may commence. We therefore conclude that the court improperly denied the defendants’ motions for summary judgment without determining whether a genuine issue of material fact existed with respect to their res judicata and collateral estoppel defenses.

Accordingly, we remand the matter to the trial court for further proceedings. Parties are entitled to argue a motion for summary judgment as of right. Vertex, Inc. v. Waterbury, 278 Conn. 557, 568 n.8, 898 A.2d 178 (2006); Curry v. Allan S. Goodman, Inc., 95 Conn. App. 147, 152-53, 895 A.2d 266 (2006); Practice Book § 11-18 (a). The transcript of the December 8, 2008 proceeding indicates that although argument commenced on the defendants’ motions for summary judgment, no substantive discussion of the defendants’ res judicata or collateral estoppel claims by either party followed. After an overview of the facts allegedly precipitating the plaintiffs action, the court recessed to confer with the presiding judge about a possible continuance of trial. When argument resumed, the court informed the parties of its decision to summarily deny the defendants’ motions without reaching the merits thereof and the hearing concluded.

In addition, the case presents interesting issues of law, including the question of whether the granting of a motion to strike constitutes a judgment rendered on the merits; see Hughes v. Bemer, 206 Conn. 491, 495, 538 A.2d 703 (1988); Tirozzi v. Shelby Ins. Co., 50 Conn. App. 680, 686-87, 719 A.2d 62, cert. denied, 247 Conn. 945, 723 A.2d 323 (1998); but see Bridgeport Hydraulic Co. v. Pearson, 139 Conn. 186, 196, 91 A.2d 778 (1952); In re Xavier D., 113 Conn. App. 478, 482, 966 A.2d 810 (2009); as well as the effect of consolidation of the two actions at the request of the defendants vis-a-vis Practice Book § 10-45, and what the defendants have termed the “simultaneous nature” of the two actions. In light of the foregoing, we believe that the parties should be afforded the opportunity to argue the merits of the preclusion claims at issue in the present case.

n

The defendants also claim that the court abused its discretion in declining to grant a continuance of trial. They cite no authority indicating that such a pretrial determination constitutes a final judgment for purposes of appeal and do not analyze such a claim pursuant to State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). Although one Connecticut court has answered that question in the negative; State v. Anonymous (1975-3), 32 Conn. Sup. 510, 338 A.2d 511 (1975); we need not resolve it here. The record before us indicates that the trial at issue has not transpired, thus rendering the matter of a continuance moot, as the defendants cannot obtain any practical relief in the present case. See Bluefin Mortgage Fund, LLC v. Speer, 291 Conn. 298, 307, 968 A.2d 362 (2009).

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.

       The plaintiff, Siriwat Smghaviroj, named as defendants the town and its board of education. He also named as defendants the following employees of the board: Margaret Mary Fitzgerald, the assistant superintendent of human resources, Howard Zwickler, the business administrator, Nancy Nash, the manager of the information technology department and Donna Quirk, the senior network engineer in the information technology department.

       The plaintiffs operative complaint, filed April 5, 2007, contained twenty-two counts that included claims for wrongful discharge, libel, slander, breach of contract, promissory estoppel, intentional infliction of emotional distress, negligent infliction of emotional distress, negligent misrepresentation and invasion of privacy by false light.

       The defendants’ motions for summary judgment raised additional claims that they concede are not at issue in this appeal.

       The defendants’ claim that the court improperly refused to rule on their motions for summary judgment in their entirety confounds their concession that only their res judicata and collateral estoppel defenses are at issue in this appeal. See footnote 3 of this opinion.

       Although the defendants also assert a due process violation under our state and federal constitutions, they advance no substantive analysis or discussion of precedent related thereto, rendering the claim inadequately briefed. Our appellate courts repeatedly have stated that “[w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” (Internal quotation marks omitted.) Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003).

       We express no opinion as to the merits of the defendants’ preclusion defenses.


author: HARPER, J.

text:
    LEONARD PRZEKOPSKI, JR. v. BARBARA PRZEKOP, EXECUTRIX (ESTATE OF LEONARD PRZEKOPSKI, SR.), ET AL.
    (AC 31059)
    Flynn, C. J., and Harper and Borden, Js.

      Argued March 22
    officially released October 5, 2010

      Stanley Maxim Lucas, for the appellants (defendants).

      Scott W. Jezek, for the appellee (plaintiff).

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

   Opinion

HARPER, J.

The defendants, Barbara Przekop, both individually and in her capacity as the executrix of the estate of Leonard Przekopski, Sr., the decedent, appeal from the judgment of the trial court ordering certain bank accounts that had been misappropriated by the plaintiff, Leonard Przekopski, Jr., to be returned to the estate of the decedent. On appeal, the defendants challenge the court’s order to return the misappropriated accounts to the estate and not to Barbara Przekop individually. We reverse in part the judgment of the trial court and remand the case with direction to order the misappropriated funds returned to Barbara Przekop individually.

The following facts, as found by the court, and procedural history are necessary for our resolution of the defendants’ appeal. The plaintiff and Barbara Przekop are siblings and the children of the decedent. Prior to the decedent’s death, he had used survivorship bank accounts as a means of estate planning. He had established separate joint accounts in his name and the name of either the plaintiff or Barbara Przekop. The plaintiff had a joint survivorship account with the decedent in the approximate amount of $20,000. Barbara Przekop and the decedent had two joint survivorship accounts: one with Citizens Bank with an initial balance of $85,463.67 (Citizens account) and one with Banknorth, N.A., with an initial balance of $74,705.84 (Banknorth account).

The decedent maintained a good relationship with the plaintiff and Barbara Przekop until his death on October 15, 2004. The plaintiff and Barbara Przekop, however, had a strained relationship. On October 13, 2004, two days before his death, the decedent signed a statutory short form durable power of attorney, which appointed the plaintiff as the attorney in fact for the decedent. Under the power of attorney, the plaintiff had the authority to “make gifts to any one or more of my spouse and descendants (if any) of whatever degree (including any person who may be a holder of this power) in amounts not exceeding the annual gift tax exclusion for federal gift tax purposes, including provisions relating to consent gifts by my spouse.” The decedent also gave the plaintiff instruction to utilize the funds in the survivorship accounts for the necessary payment of his expenses and the making of gifts within the limits provided by the durable power of attorney.

The following day, one day before the death of the decedent, the plaintiff changed the identity of the joint survivorship owner on the Citizens account and on the Banknorth account from Barbara Przekop to himself. He also took $40,600.98 from the Citizens account and placed it into an account with Liberty Bank (Liberty account). Following the decedent’s death, the plaintiff paid approximately $10,000 in funeral costs from the decedent’s funds.

Following a full evidentiary hearing, the Probate Court, on February 14,2006, issued an order that stated: “Within thirty days of the date of this decree, [the plaintiff] shall return the funds which were on deposit with Citizens Bank and Banknorth, N.A., on October 13, 2004 and held jointly between the decedent and Barbara Przekop to Barbara Przekop, with the exception of $11,000, which he may retain. The $11,000 shall be reported on the succession tax form as a transfer before death to [the plaintiff]. The amount which shall be returned shall also be reduced by the $10,000 which was paid from those funds for the decedent’s funeral and burial expenses.

“The $2009.11 which was identified as the amount remaining in the Eastern Savings certificate of deposit passed to the [plaintiff] since that account was established for his benefit by the decedent made under the power of attorney. If the account was in the decedent’s name prior to any transfer, it shall be reported as a solely held asset and returned to the fiduciary for inclusion in the estate inventory and the estate account.

“The fiduciary shall file the succession tax return and the return and list of claims within forty-five days of the date of this decree.”

The plaintiff sought to appeal from the judgment of the Probate Court, pursuant to General Statutes § 45a-186. The appeal was authorized on March 9, 2006, and brought to the court by a statement of appeal filed January 16, 2007. The defendants answered the statement of appeal on April 12, 2007. The court, Hon. D. Michael Hurley, judge trial referee, received evidence on October 23,2007. Prior to rendering a decision, Judge Hurley died, and the matter was reassigned by agreement of the parties. Following a review of the transcript, exhibits, pleadings and briefs, the court, Hon. Robert C. Leuba, judge trial referee, ordered that the plaintiff transfer all of the assets of the Citizens, Banknorth and Liberty accounts to the decedent’s estate for distribution in accordance with the decedent’s last will and testament. The defendants filed a motion for rectification or for a corrected judgment, which, following a hearing, Judge Leuba denied. This appeal followed.

We begin by setting forth our well settled standard of review. “An appeal from a Probate Court to the Superior Court is not an ordinary civil action. . . . When entertaining an appeal from an order or decree of a Probate Court, the Superior Court takes the place of and sits as the court of probate. ... In ruling on a probate appeal, the Superior Court exercises the powers, not of a constitutional court of general or common law jurisdiction, but of a Probate Court. . . . When . . . no record was made of the Probate Court proceedings, the absence of a record requires a trial de novo.” (Citation omitted; internal quotation marks omitted.) Silverstein v. Laschever, 113 Conn. App. 404, 409, 970 A.2d 123 (2009).

“Agency is the fiduciary relationship which results from manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act. . . . The one for whom action is to be taken is the principal. . . . The one who is to act is the agent. . . . The authority of the . . . agent [is] defined by the terms of the power of attorney.” (Citations omitted; internal quotation marks omitted.) Long v. Schull, 184 Conn. 252, 256, 439 A.2d 975 (1981). “[A] fiduciary relationship has always demanded a high degree of scrutiny. . . . [W]e have held . . . that [p]roof of a fiduciary relationship . . . imposes a twofold burden upon the fiduciary. Once a [fiduciary] relationship is found to exist, the burden of proving fair dealing properly shifts to the fiduciary. . . . Furthermore, the standard of proof for establishing fair dealing is not the ordinary standard of fair preponderance of the evidence, but requires proof ... by clear and convincing evidence . . . .” (Internal quotation marks omitted.) Brown v. Villano, 49 Conn. App. 365, 368, 716 A.2d 111, cert. denied, 247 Conn. 904, 720 A.2d 513 (1998); see also Gorelick v. Montanaro, 119 Conn. App. 785, 807, 990 A.2d 371 (2010); Stuart v. Stuart, 112 Conn. App. 160, 171 n.5, 962 A.2d 842 (2009), rev’d in part on other grounds, 297 Conn. 26, 996 A.2d 259 (2010).

In finding that the plaintiff did not engage in fair dealing, Judge Leuba discredited the testimony of the attorney who had prepared the power of attorney. The attorney represented that the decedent intended that the plaintiff be able to make gifts to himself reaching the lifetime gift tax exemption of $1 million, as opposed to the $11,000 annual exclusion. The court also discredited the plaintiffs claim that the decedent had told him to divide the money in the various accounts however the plaintiff wanted. Because the court discredited the testimony of the two witnesses; see Rissolo v. Betts Island Oyster Farms, LLC, 117 Conn. App. 344, 354-55, 979 A.2d 534 (2009) (“[t]he trier of fact ... is the sole arbiter of credibility, and thus is free to accept or reject, in whole or in part, the testimony offered by either party” [internal quotation marks omitted]); we are unable to conclude that there was clear and convincing evidence that the power of attorney authorized the plaintiff to change the name of the survivor on the Citizens and Banknorth accounts from Barbara Przekop to himself.

The durable power of attorney created a formal contract of agency between the decedent, the principal, and the plaintiff, the agent. See Long v. Schull, supra, 184 Conn. 256. “When the trial court draws conclusions of law . . . our review is plenary and we must decide whether its conclusions are legally and logically correct .... Moreover, the construction of a written contract [that is unambiguous within its four comers] is a question of law requiring plenary review.” (Citation omitted; internal quotation marks omitted.) Flaherty v. Flaherty, 120 Conn. App. 266, 269, 990 A.2d 1274 (2010); see also Honulik v. Greenwich, 293 Conn. 698, 711, 980 A.2d 880 (2009).

“A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. . . . [T]he intent of the parties is to be ascertained by a fair and reasonable constmction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . .” (Internal quotation marks omitted.) Hirschfeld v. Hirschfeld, 50 Conn. App. 280, 284-85, 719 A.2d 41, cert. denied, 247 Conn. 929, 719 A.2d 1168 (1998).

The court found that there existed no credible evidence from which it could conclude that the decedent intended that the plaintiff be able to make gifts to himself reaching the lifetime gift tax exemption. We agree that the plain language of the contract makes clear that the decedent had no such intent. Concluding otherwise would render meaningless subsection (O) of the power of attorney, which gave the plaintiff the authority to “make gifts to any one or more of my spouse and descendants (if any) of whatever degree (including any person who may be a hold of this power) in amounts not exceeding the annual gift tax exclusion for federal gift tax purposes (Emphasis added.) Interpreting the power of attorney in such a way to give meaning to the clear and unambiguous language of subsection (O) necessarily requires us to find that there was no clear and convincing evidence that the plaintiff was given the authority to substitute himself as the sole survivor of the Citizens and Banknorth survivorship accounts. Thus, we are unable to conclude that the plaintiff engaged in fair dealing when he substituted his name for Barbara Przekop’s on the two survivorship accounts.

The question that we must answer on appeal, therefore, is whether the court acted properly in concluding that the funds misappropriated from the Citizens and Banknorth accounts should be transferred to the estate of the decedent, rather than to Barbara Przekop individually. The defendants claim that if the money were transferred to the estate, the plaintiff would benefit from his wrongdoing at the expense of Barbara Przekop. We agree.

General Statutes § 45a-98 (a) provides in relevant part: “Courts of probate in their respective districts shall have the power to . . . (3) except as provided in section 45a-98a or as limited by an applicable statute of limitations, determine title or rights of possession and use in and to any real, tangible or intangible property that constitutes, or may constitute, all or part of any trust, any decedent’s estate, or any estate under control of a guardian or conservator, which trust or estate is otherwise subject to the jurisdiction of the Probate Court, including the rights and obligations of any beneficiary of the trust or estate and including the rights and obligations of any joint tenant with respect to survivorship property . . . and (7) make any lawful orders or decrees to carry into effect the power and jurisdiction conferred upon them by the laws of this state.”

Both the Probate Court and Judge Leuba agreed that the plaintiff misappropriated funds from the bank accounts; their disagreement is over what the appropriate remedy should be. The Probate Court determined that the misappropriated funds from the Citizens and Banknorth accounts should be transferred to Barbara Przekop, as she was the sole survivor of the survivor-ship accounts prior to the plaintiffs substituting himself. The Superior Court, sitting as a court of probate in a trial de novo, concluded, however, that the funds should be returned to the estate for distribution under the decedent’s last will and testament. Because the plaintiff is a beneficiary under the decedent’s will who stands to inherit some of these funds if they are distributed pursuant to the will, the court’s conclusion had the effect of allowing the plaintiff to profit from his misuse of the power of attorney contrary to the decedent’s estate planning.

“A bank account may be so created that two persons will be joint owners thereof during their mutual lives, and the survivor will take the whole on the death of the other.” 10 Am. Jur. 2d, Banks and Financial Institutions § 676 (2009). “Except where the passage of title may be prevented by renunciation, or where the right is subject to avoidance as in violation of a statute, the surviving joint tenant [of a joint bank account] is entitled to the jointly owned property free of the claims of the heirs or creditors of the deceased cotenant. This is so regardless of who has contributed the funds to the account. The survivor takes under the agreement creating the joint tenancy, and not as the successor to the deceased joint tenant.” 48A C.J.S., Joint Tenancy § 3 (2004).

We conclude that the Probate Court ordered the proper remedy and that it was improper for the Superior Court to order the transfer of the misappropriated funds from the plaintiff to the estate, instead of directly to Barbara Przekop individually. The court found that the decedent had used the survivorship accounts as a method of estate planning. There is no evidence that gives us reason to believe that the decedent intended the plaintiff to use the durable power of attorney to substitute himself as the sole survivor on the Citizens and Banknorth accounts. This being the case, we are unable to find any reason for the court’s ordering the money be returned to the estate.

It is clear from the decedent’s use of joint survivor-ship accounts that he intended for the accounts to pass immediately to Barbara Przekop upon his death and not to be the subject of probate. To effectuate the decedent’s intent and ensure that the plaintiff does not profit and Barbara Przekop does not suffer from the plaintiffs abuse of the power of attorney, we reverse the court’s third order, which specifically stated that “the [plaintiff] transfer to the estate all of the bank accounts shown in the plaintiffs exhibit two with the exception of the sum of $11,000 (which he may retain as a gift to himself authorized by the power of attorney), which said amount shall, after the payment of necessary costs and expenses, be available for distribution under the decedent’s last will and testament,” and remand the case to the Superior Court with direction to order the funds in the Citizens, Banknorth and Liberty bank accounts to be returned to Barbara Przekop individually.

The judgment is reversed only as to the order that the plaintiff transfer to the decedent’s estate all of the bank accounts shown in the plaintiffs exhibit two with exception of the sum of $11,000 and the case is remanded with direction to order those funds, with the exception of the sum of $11,000, returned to Barbara Przekop individually. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The use of the term defendants refers to Barbara Przekop both individually and in her capacity as executrix of the estate of the decedent. We use Barbara Przekop’s name throughout this opinion when referring to her in her individual capacity only.

       To the extent that the plaintiff, in his brief, challenges the court’s determination that he had breached a fiduciary duty, we do not consider the claim. If the plaintiff wanted to raise a claim on which to reverse the judgment, we note that he should have filed a cross appeal pursuant to Practice Book § 61-8. Mitchell v. Silverstein, 67 Conn. App. 58, 60 n.5, 787 A.2d 20 (2001) (“[i]f an appellee wishes to change the judgment in any way, the party must file a cross appeal” [internal quotation marks omitted]), cert. denied, 259 Conn. 931, 793 A.2d 1085 (2002). Because he failed to do so, we will not consider his request.

       The decedent also had an Eastern Federal Bank account in his name only, which had an initial balance of $2008, and a SBLI joint survivorship account with Barbara Przekop with a balance of $132,000. Neither one of these accounts is at issue in this appeal.

       The funds used to pay the funeral bill were not from the accounts that are at issue in this appeal.

       There is nothing in the record elucidating the manner by which this matter was presented to the Probate Court.

       General Statutes § 45a-186 (a) provides in relevant part: “Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may . . . appeal therefrom to the Superior Court. . . .”

       The defendants attached to their answer a different copy of the Probate Court’s order. The second paragraph of the version of the order submitted by the defendants states: “The $2009.11 which was identified as the amount remaining in the Eastern Savings certificate of deposit passed to the [plaintiff] since that account was established for his benefit by the decedent. The amount identified as remaining on hand in the decedent’s checking account, $4,087.61 passed to the son if it is established that the account was joint with him before any transfers were made under the power of attorney. If the account was in the decedent’s name prior to any transfer, it shall be reported as a solely held asset and returned to the fiduciary for inclusion in the estate inventory and the estate account.” (Emphasis added.) The two versions of the order are identical in all other respects. Neither parly offered into evidence a certified copy of the order, but no issue has been raised relating to the difference between the two orders.

       See 26 U.S.C. § 2505 (a).

       See 26 U.S.C. § 2503 (b).

       This excludes the $11,000 properly retained by the plaintiff.