author: BISHOP, J. SCHALLER, J.,

text:
    STATE OF CONNECTICUT v. MARK THATCHER
    (AC 21849)
    Schaller, Mihalakos and Bishop, Js.
    Argued March 25 —
    officially released August 13, 2002

      Christopher J. Shea, for the appellant (defendant).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James Turcotte, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Mark Thatcher, appeals from the judgment of conviction, rendered after a conditional plea of nolo contendere, of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a). On appeal, he claims that the court acted improperly in denying (1) his motion to suppress hospital test results indicating that he had a blood alcohol content of 0.222 percent at the time of operation and (2) his motion for an evidentiary hearing under Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). We affirm the judgment of the trial court.

The record discloses the following relevant facts and procedural history. On February 8,1997, the defendant, while operating his motor vehicle in Cheshire, collided with another motor vehicle at the intersection of Routes 691 and 10. Thomas Prue, an officer with the Cheshire police department, was dispatched to the scene of the accident. Upon his arrival, Prue saw ambulance personnel attending to the defendant, whose head was bleeding slightly. The windshield of the defendant’s vehicle was cracked in such a way that it appeared likely that the defendant had struck his head on it during the accident. Additionally, the floor of the vehicle was littered with empty beer cans. The defendant, slurring his words, provided Prue with two versions of the events leading to the accident, and Prue smelled alcohol on the defendant’s breath. Thereafter, the defendant asked to be taken to the hospital.

The ambulance personnel transported the defendant to Meriden-Wallingford Hospital. There, the defendant was examined by Deanna Cherrone, an emergency room physician. Cherrone detected that the defendant smelled of alcohol and asked him whether he had consumed any alcoholic beverages. The defendant told her that he had not. Cherrone ordered two blood tests for the defendant: a complete blood count (minor trauma panel) and an alcohol level. The alcohol level revealed that the defendant’s blood alcohol content was 0.222 percent, more than double the legal limit. Cherrone diagnosed the defendant as having an acute head contusion, an acute knee abrasion, interior iliac pain (hip pain) and acute alcohol intoxication. She then discharged the defendant to the custody of his wife.

On February 27, 1997, Prue applied for a warrant to search the medical records office of Meriden-Wall-ingford Hospital and to seize “[b]lood samples or the results of a chemical analysis of blood samples taken in the regular course of business of the hospital for Mark J. Thatcher (DOB 01-13-58) on February 8, 1997.” An affidavit of Prue and Thomas Bobok, another officer with the Cheshire police department, was included in the application. The trial court issued the warrant as requested. The officers later executed the search authorized in the warrant and seized the results of the defendant’s blood tests.

On April 4,1997, the state charged the defendant with violating § 14-227a in connection with the events of February 8, 1997. The defendant entered a plea of not guilty on May 21, 1997. On January 5, 1999, the defendant filed a motion to suppress the results of the blood alcohol test. The court conducted a suppression hearing on May 1 and 25, 2000. It denied the motion on June 15, 2000. On July 17, 2000, the defendant filed another motion to suppress. In that motion, the defendant also requested an evidentiary hearing pursuant to Franks v. Delaware, supra, 438 U.S. 154. The court denied the motion on March 2, 2001.

On April 11, 2001, the defendant entered a plea of nolo contendere conditioned on the right to appeal from the denial of his motions to suppress and for a Franks hearing. See General Statutes § 54-94a. The court later sentenced the defendant to six months imprisonment, execution suspended with eighteen months special probation, and fined him $500. This appeal followed. Additional facts and procedural history will be presented as necessary.

I

The defendant, in the section of his brief titled, “Statement of the Issues,” states that the first of two issues on appeal is “[wjhether the trial court correctly denied [his original] motion to suppress, which claimed that blood tests taken at the hospital were inadmissible against him because they were not taken for purposes of medical diagnosis and treatment and/or they were seized by agents of the state without a warrant.” Later in his brief, however, in the section titled, “Argument,” the defendant states: “Upon review of the relevant case law regarding [the trial court’s] decision to deny the original motion to suppress, the defendant believes the trial court’s findings of fact that the defendant’s blood was taken for purposes of medical diagnosis and treatment and not as a result of an agency relationship between the police and the hospital would not be overturned on appeal. . . . The defendant would concede that since the trial court’s findings of fact on this issue are based almost solely on the credibility given to the state’s witnesses, an appeals court could not make a finding that those findings are clearly erroneous.” More recently, during oral argument before us, the defendant confirmed that he had conceded in his brief that the court had properly denied his first motion to suppress. We deem this claim abandoned and now consider the defendant’s remaining claim.

II

The defendant claims that the court acted improperly in denying his motion for a Franks hearing. We disagree.

The following additional procedural history is relevant to our consideration of this claim. The affidavit submitted in support of the warrant application stated as follows: “[T]he affiants, Officer Thomas Prue and Officer Thomas Bobok are regular members of the Cheshire Police Department and have been members for the past nine (9) years two (2) months/four (4) years. We are presently assigned to the Patrol Division. That we have investigated numerous criminal and motor vehicle matters and have received specialized training in these matters. That we have personal knowledge of the facts and circumstances hereinafter related as a result of our own investigative efforts and those of brother officers who have reported their findings to us.

“That in the town of Cheshire, on February 8, 1997, at approximately 2042 hours, the Cheshire Police Department received a report about a motor vehicle accident with injuries on Highland Avenue at 691 Eastbound entrance. Campion Ambulance service was also dispatched and responded to the scene. On arrival Officer Prue found that two vehicles had been involved in a head-on type accident. It appeared the accident occurred when a 1988 Olds Aera . . . came in contact with a 1992 Chevrolet Cavalier .... Both vehicles sustained extensive front end damage.

“That Officer Prue found the operator of said Olds Aera leaning against his vehicle, later identified as the registered owner, Mark Thatcher. Mr. Thatcher was in the company of Campion Ambulance personnel. This writer spoke with Thatcher to determine the events of the accident. In speaking with Thatcher this writer could smell on his breath an odor of an alcoholic beverage. This also was confirmed by ambulance personnel. Mr. Thatcher, in slurred speech, could not explain the accident. In questioning him about which direction he was traveling he stated one time he was southbound and then stated he was northbound.

“That upon inspection of his vehicle, on the passenger front floor were numerous empty beer cans. On the rear floor were more empty beer cans. When questioned about the items, Mr. Thatcher stated they were empty before the accident occurred.

“That based on their training and experience, the affiants have reason to believe that Mark J. Thatcher (DOB-01-13-58) was operating a motor vehicle under the influence of intoxicating liquor or drug, or both, and that the chemical analysis of a blood sample would constitute evidence of operation of a motor vehicle while under the influence of intoxicating liquor or drug, or both.

“That on or about February 8, 1997, a blood sample of Mark J. Thatcher (DOB-01-13-58) was taken in the regular course of business by Meriden-Wallingford Hospital for the diagnosis and treatment of an injury or alleged injury and said sample was taken by a person licensed to practice medicine in this state, a qualified laboratory technician, an emergency technician II or a registered nurse.

“That based upon the foregoing facts and information, the affiants have probable cause to believe and do believe that competent evidence to wit: blood samples or the results of a chemical analysis of blood samples to establish probable cause for the arrest by warrant of such person for a violation of [General Statutes §] 14-227a will be found at Meriden-Wallingford Hospital. The affiants request the authority to seize such samples or analysis results.” (Emphasis added.)

On May 25, 2000, the second day of the suppression hearing, the defendant’s counsel elicited the following testimony from Prue on direct examination:

“Q. Were you present when Mr. Thatcher got into the ambulance?
“A. Was I present?
“Q. Yes.
“A. Certainly. I was on the scene.
“Q. Okay. Did you follow Mr. Thatcher to the hospital?
“A. No.
“Q. Did any police officer—Cheshire police officer that you know of—follow Mr. Thatcher to the hospital?
“A. No.
“Q. Did any Cheshire police officer go to the hospital later that day during the course of their investigation of this case?
“A. No.
“Q. Did you at any time after this case go to the hospital to—in any capacity with regards to your investigation of Mr. Thatcher’s case?
“A. No. Not in reference to when he went to the hospital. I went to the hospital whenever I had the search warrant signed. That’s the only time I ever went.
“Q. Did you speak to any of the medical personnel at the hospital on the date of this accident?
“A. No. I did not.
“Q. Did you speak to any of the medical personnel in the weeks after this accident?
“A. No. I did not.
“Q. You put in your search warrant and your arrest warrant that the blood was taken for purposes of medical diagnosis and treatment. Do you remember that?
“A. Well, if I put it in there, yes.
^
“Q. How do you know that the blood was taken for purposes of medical evaluation and treatment?
“A. I assumed from his injuries that he sustained in the accident.
“Q. So you don’t have any direct information that this blood was taken for medical purposes of diagnosis and treatment?
“A. Urn.
“Q. Other than your assumption.
“A. Right,
íjí
“Q. Well. [The search warrant] was signed by the judge and you told the judge that the blood was taken for purposes of medical diagnosis and treatment and you didn’t know that, right?
“A. At that point?
“Q. Right.
“A. Probably not.”

On the basis of the foregoing testimony, the defendant filed a motion for a Franks hearing. The defendant argued that Prue had admitted at the hearing on the motion to suppress that the statement in the affidavit that the defendant’s blood had been taken for medical diagnosis and treatment had been based on his assumption and not on his personal investigation or information received from other police officers. Therefore, the defendant argued, the statement in the affidavit that the affiants “have personal knowledge of the facts and circumstances hereinafter related as a result of our own investigative efforts and those of brother officers who have reported their findings to us” was false, and this false claim had been made in reckless disregard for the truth. Finally, the defendant argued that the statements regarding the basis of the officers’ knowledge had provided necessary support for the court’s issuance of the search warrant. The court denied the motion, concluding that there still would have been probable cause to issue the warrant even if the challenged statements never were included in the affidavit. With that additional procedural history in mind, we now set forth the legal principles that guide our analysis of this claim.

“In Franks v. Delaware, supra, [438 U.S.] 155-56, the United States Supreme Court held that a defendant may challenge the truthfulness of an affidavit supporting a search warrant, provided the defendant has made a ‘substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit . . . .’If this statement is necessary to the finding of probable cause, ‘the Fourth Amendment requires that a hearing be held at the defendant’s request.’ Id. The court stated also that ‘[t]o mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and . . . [t]here must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. . . . Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. . . . The deliberate falsity or reckless disregard whose impeachment is permitted ... is only that of the affiant, not of any governmental informant.’ Id., 171.” State v. Ruscoe, 212 Conn. 223, 232, 563 A.2d 267 (1989), cert. denied, 493 U.S. 1084, 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1990). “Whether the defendant is entitled to a hearing pursuant to Franks v. Delaware, [supra, 154], is a mixed question of law and fact that [is reviewable] on appeal.” State v. Bergin, 214 Conn. 657, 662 n.4, 574 A.2d 164 (1990).

In the present case, the defendant is not contending that the affiants knowingly and intentionally included false statements in the affidavit. Accordingly, we focus on whether the defendant first succeeded in making a substantial preliminary showing that the affiants, in reckless disregard for the truth, included a false statement in the affidavit.

We agree that Prue’s testimony indicates that neither he nor the other affiant, at the time of the warrant application, had personal knowledge that a sample of the defendant’s blood had been drawn. Consequently, Prue’s testimony indicates also that neither he nor the other affiant, at the time of the warrant application, had personal knowledge of the credentials of the individual who supposedly had drawn a sample of the defendant’s blood. To the extent that the affidavit indicates otherwise—i.e., that Prue or the other affiant’s personal knowledge provided the factual basis for those allegations—the defendant succeeded in making a substantial preliminary showing that the affidavit contains a false statement. We now consider whether the defendant succeeded in making a substantial preliminary showing that the affiants had demonstrated a reckless disregard for the truth in submitting the affidavit.

“[T]he test for determining whether an affiant’s statements were made with reckless disregard for the truth is not simply whether the affiant acknowledged that what he [or she] reported was true, but whether, viewing all the evidence, the affiant must have entertained serious doubts as to the truth of his [or her] statements or had obvious reasons to doubt the accuracy of the information he [or she] reported.” (Internal quotation marks omitted.) United States v. Schmitz, 181 F.3d 981, 986-87 (8th Cir. 1999); see also United States v. Whitley, 249 F.3d 614, 621 (7th Cir. 2001) (to prove reckless disregard for truth, defendant must establish that affiant “in fact entertained serious doubts as to the truth of his allegations”).

The affidavit in the present case is inartfully drafted. Its language and paragraph structure generate an ambiguity as to whether the factual basis for the affiants’ statement, that a sample of the defendant’s blood had been drawn and tested by an individual having certain credentials, was the personal knowledge of the affiants or was a combination of their training, experience and circumstances. Given that the affidavit also includes statements regarding the affiants’ years of police service and prior relevant experiences, it can not reasonably be said that they wilfully or recklessly misled the court to conclude that the factual assertions contained in the affidavit were based, exclusively, on their personal investigation or reports from other police officers.

During the suppression hearing, Prue testified that, during the course of his employment as a police officer, he had responded to “a couple of hundred” motor vehicle accidents, including accidents resulting in head injuries. Prue testified that, upon his arrival at the scene, he had observed that the defendant was suffering from a head injury, from which he was bleeding slightly. He testified further that he had observed ambulance personnel attending to the defendant at the scene and had watched as they placed the defendant into the ambulance and departed. Finally, Prue testified that, on the basis of the defendant’s injuries, he had assumed that a sample of the defendant’s blood had been drawn and tested.

The affidavit states that, at the time of the warrant application, Prue had over nine years of experience, had undergone specialized training and had “investigated numerous criminal and motor vehicle matters . . . .” It also states that the defendant smelled as if he had been consuming alcoholic beverages, that he was slurring his words and that he was unable to describe the events leading to the accident. The affidavit states further that there were empty beer cans on the floor of the defendant’s vehicle.

On the basis of the record, we conclude that the defendant failed to make a substantial preliminary showing that the affiants had entertained serious doubts as to the truth of their statements or had obvious reasons to doubt the accuracy of the information they reported. Accordingly, the court acted properly in denying the defendant’s motion for a Franks hearing. See United States v. Schmitz, supra, 181 F.3d 986-87.

The judgment is affirmed.

In this opinion MIHALAKOS, J., concurred.

SCHALLER, J.,

dissenting. I respectfully disagree with the majority’s conclusion that the trial court properly denied the defendant’s motion for a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). At the outset, I note the statement in the affidavit that the defendant calls into question. Specifically, the affiants stated in the affidavit that “we have personal knowledge of the facts and circumstances hereinafter related as a result of our own investigative efforts and those of brother officers who have reported their findings to us.” (Emphasis added.)

As the majority correctly states, the defendant must meet a three part test in order to be entitled to a Franks hearing to challenge the truthfulness of an affidavit supporting a search warrant. The defendant must make a substantial preliminary showing that (1) the affidavit contained a false statement, (2) the false statement was included knowingly and intentionally, or with reckless disregard for the truth, and (3) the statement was necessary to the finding of probable cause to issue the warrant. I conclude that the defendant has satisfied this test in the present case and is entitled to a Franks hearing.

With regard to the first prong of the test, it is clear, and indeed the majority concludes, that Prue’s testimony establishes that the affiants did not have personal knowledge at the time of the warrant application that a sample of the defendant’s blood had been drawn.

With regard to the second prong of the test, I conclude that the affiants did include this statement with reckless disregard for the truth. As the majority states, the test for reckless disregard for the truth requires a showing that the affiants entertained serious doubts as to the truth of their statement or had obvious reasons to doubt the accuracy of the information reported.

At this point, I want to call attention to a point of confusion in this case. Specifically, I note that the “statement” or “information reported” that the defendant takes issue with is the affiants’ statement that they had personal knowledge of the facts contained in the affidavit. It is essential to distinguish the statement that the defendant challenges, that the affiants had personal knowledge of what they reported, from the facts themselves that the affiants did report. This is essential in the present case because the law and the facts become confusing since the legal test for reckless disregard for the truth requires a showing that the affiants entertained serious doubts as to the truth of their statement or had obvious reasons to doubt the accuracy of the information reported. It would be incorrect, therefore, to shift the focus to assessing the truth of the underlying facts alleged in the affidavit rather than the truthfulness of the assertion that the affiants had personal knowledge.

Returning to the second prong, I conclude that the defendant has met this test because Prue’s testimony clearly reveals that at no time prior to the warrant application did the affiants have any personal knowledge of the facts related in the affidavit, nor did they make any effort to obtain such knowledge. On the basis of this testimony, I must conclude that the affiants entertained serious doubts as to the truth of their statement that they had personal knowledge of the facts related in the affidavit. No other conclusion is plausible.

For the same reasons stated previously, I conclude that the affiants had obvious reason to doubt the accuracy of the information reported in the affidavit regarding personal knowledge. With Prue’s admission that the police did not have personal knowledge that a blood sample had been taken, the affiants had an obvious reason to doubt the accuracy of their statement that they did have personal knowledge.

With regard to the last prong, I conclude that the statement that the affiants had personal knowledge was necessary to the finding of probable cause to believe that a blood sample would be at the hospital. If this statement is removed from the warrant application, the only statement supporting the conclusion that a blood sample was taken, or even existed, would be the affi-ants’ statement that they have experience in law enforcement. On the basis of this statement alone, the court’s conclusion that there is probable cause to believe that a blood sample was taken and exists could rest only on the police officers’ belief that such samples have been taken because their experience reveals that blood samples have been taken in the past under similar circumstances.

Unless the affidavit, was presented with affirmative personal knowledge that such a sample was taken and exists, a judge could not find probable cause to search for and seize an item the existence of which is unknown. Warrant applications must not be granted to provide the police with an opportunity to engage in a fishing expedition for evidence the existence of which is in the realm of speculation. The problem with this warrant is not lack of clarity but, rather, lack of truthfulness and accuracy.

Because the defendant has satisfied all three elements of the applicable test, the trial court improperly denied him a Franks hearing. Accordingly, I would reverse the judgment of the trial court.

       General Statutes § 14-227a (a) provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. ...”

       General Statutes § 54-94a provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure, motion to suppress statements and evidence based on the involuntariness of a statement or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”

       We note that the defendant does not contest the veracity of the statement in the affidavit that his blood was drawn at the Meriden-Wallingford Hospital by medical personnel for the diagnosis and treatment of an injury.

       The defendant, in his brief, states, “Clearly, in this case, the defendant is not claiming Officer Prue knowingly put false statements in his search warrant affidavit.”

       We note that “[t]he Franks decision did not define ‘reckless disregard for the truth,’ other than to suggest that the standard required more than mere negligence on the part of the affiant.” United States v. Whitley, supra, 249 F.3d 621.

       We note additionally that the notion of probable cause is a flexible concept. In determining whether to issue a search warrant, the issuing magistrate reviews the entire affidavit and the totality of its circumstances to determine whether probable cause exists for its issuance. State v. Barton, 219 Conn. 529, 544-46, 594 A.2d 917 (1991). Thus, the statement regarding the affiants’ basis of belief is not pivotal to the vitality of the search warrant application if the magistrate can find probable cause from the totality of facts cited in the affidavit and reasonable inferences to be drawn from them. We have noted that the warrant affidavit in the present case is not a model of clarity regarding the basis of the affiants’ knowledge and beliefs. Police officers as well as other law enforcement agents leave themselves vulnerable to considerable criticism when they submit warrant affidavits that arguably cast assumptions as to personal knowledge acquired through investigation. Although we do recognize that an officer’s experience and training, together with the appropriate facts and inferences, may suffice as a substitute for personal knowledge in many instances, it is a better course for affiants, in the exercise of care, to ensure that the affidavit, as written, clearly distinguishes among various sources of support for the factual statements contained therein.


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    SHIRLEY GERSTENZANG v. GLENVILLE NEWS AND FLORIST, INC., ET AL.
    (AC 21770)
    Mihalakos, Bishop and Daly, Js.
    Argued May 8 —
    officially released August 13, 2002

      Michael R. Kerin, with whom, on the brief, was Michael Gene Clear, for the appellant (plaintiff).

      Valerie E. Maze, with whom, on the brief, was Fernando F. de Arango, for the appellee (defendant Maurice Roddy).
   Opinion

BISHOP, J.

The plaintiff, Shirley Gerstenzang, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendant Maurice Roddy, following the court’s granting of the defendant’s motion to set aside the verdict and for judgment notwithstanding the verdict. She claims that the court acted improperly in refusing to instruct the jury on the effect of ultra vires acts by a municipality. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. Prior to April, 1995, at 263 Glenville Road, Greenwich, a planter, approximately fifteen feet by four feet, occupied two parking spaces directly in front of a retail store operated by Glenville News and Florist, Inc. (Glenville News). Half of the planter was located on property owned by Rock Spring Partners Limited Partnership (Rock Spring), Glenville News’ landlord. That half abutted a sidewalk owned by Rock Spring, while the other half rested on public property abutting the street.

Glenville News asked the town of Greenwich (town) to remove the planter. The defendant commissioner of public works for the town, who was responsible for maintaining the highways within the town, ordered the planter removed in response to the request. On April 17 and 18, 1995, town employees removed the planter and repaved the area underneath. That task was accomplished under the supervision of the town’s highway foreman, Paul Kohloff. Neither the defendant nor any town employees performed work on the sidewalk in front of Glenville News; instead, they left the edge of the sidewalk exposed so as to function as a curb.

On April 19, 1995, the plaintiff tripped and fell while attempting to step up onto the sidewalk and was injured. The plaintiff subsequently commenced a negligence action against Glenville News, Rock Spring and the defendant. The defendant, in response, alleged the special defense of governmental immunity.

During the trial, the plaintiff filed a request to charge the jury, asking the court to include an instruction on the effect of ultra vires acts by the town. The court declined, however, to include an instruction on that issue.

On July 27, 2000, the jury returned a verdict against the defendant in the amount of $208,005.75. The defendant filed a motion to set aside the verdict and for judgment notwithstanding the verdict, and the court granted the motion and rendered judgment in the defendant’s favor. This appeal followed.

Turning now to the claim raised by the plaintiff, we are mindful that “[t]he court has a duty to submit to the jury no issue upon which the evidence would not reasonably support a finding.” Batick v. Seymour, 186 Conn. 632, 641, 443 A.2d 471 (1982). The plaintiff specifically claims that the court acted improperly in refusing to instruct the jury on ultra vires acts and that she was harmed by that refusal. If the instruction were given, the plaintiff argues, it would have allowed the jury to find that the defendant had engaged in an ultra vires act, i.e., an act beyond the scope of his authority as commissioner of public works. Therefore, the doctrine of qualified immunity for discretionary acts of municipal employees would not apply to shield the defendant from liability. We conclude that the court acted properly.

In general, a municipal employee has a qualified immunity in the performance of a governmental duty. Evon v. Andrews, 211 Conn. 501, 505, 599 A.2d 1131 (1989). Comment g to § 895D of the Restatement (Second) of Torts (1979), provides in relevant part: “An immunity protects an officer only to the extent that he is acting in the general scope of his official authority. When he goes entirely beyond it and does an act that is not permitted at all by that duty, he is not acting in his capacity as a public officer or employee and he has no more immunity than a private citizen.” Our Supreme Court has also spoken to this point. In Rudnyai v. Harwinton, 79 Conn. 91, 95, 63 A. 948 (1906), our Supreme Court held that “municipal immunity from liability for injuries resulting from the maintenance and repair of highways, does not extend beyond the governmental duty imposed by the State.”

In the present case, there are two relevant statutory sources that define the scope of the defendant’s authority to act. General Statutes § 13a-99 provides in relevant part: “Towns shall, within their respective limits, build and repair all necessary highways . . . .” Also, § 158 (a) of the Greenwich charter provides: “The Commissioner of Public Works shall have full charge of the maintenance and repair of highways . . . .” Whether the removal of the planter was an act performed in furtherance of the defendant’s charge of maintaining and repairing the town’s highways is at the heart of this controversy.

The plaintiff contends that the defendant acted outside the scope of his authority by entering and removing the planter, half of which was on private property, and that the issue of whether he was acting in an ultra vires manner should have been submitted to the jury. One case in particular guides our consideration of this issue, Wadsworth v. Middletown, 94 Conn. 435, 109 A. 246 (1920).

In Wadsworth v. Middletown, supra, 94 Conn. 436, the plaintiff was the owner of a piece of land that abutted two highways, and on the boundaries of his land various trees and shrubs had overgrown to the point that they were obstructing travel. The defendant, who was the town selectman, ordered that this overgrowth be trimmed, an activity that required municipal employees to go on private property for the purpose of trimming the trees. See id., 437-38. The employees, however, cut more than was necessary to clear the obstruction. Id., 441. Our Supreme Court concluded that the defendant was liable to the landowner for the destruction of the trees that were unnecessarily cut, but also noted that “[t]he duty of town and municipality is to keep the streets reasonably safe and reasonably free of obstructions” and that “[t]he town or its agents have the undoubted right to cut down trees in the highway which interfere with public travel.” Id., 439. The Wadsworth court held that “since [agents of the municipality] are engaged upon a governmental duty in the care and maintenance of the highways, so long as they act in good faith, in the exercise of an honest judgment, and not in abuse of their discretion, or maliciously or wantonly, they cannot be held liable.” Id.

By implication, Wadsworth strongly suggests that an agent of a municipality may encroach on private property to clear highway obstructions without sacrificing his qualified immunity from liability. We therefore conclude, on the bases of Wadsworth, § 13a-99 of the General Statutes and § 158 (a) of the Greenwich charter, that the defendant in the present case enjoyed qualified immunity provided the planter constituted a highway obstruction, and there was no reasonable factual basis to support the plaintiffs claim that, in going on private property, the defendant acted beyond his authority. Therefore, the plaintiff was not entitled to such an instruction.

The record discloses the following additional facts, which were undisputed at the trial. In its request to remove the planter, Glenville News claimed that the planter was a danger to traffic flow on Glenville Road, that at least one car had crashed into the planter and that delivery trucks often double-parked beside it. The planter was located partly on a right-of-way owned by the town, and two parking spaces had been eliminated to accommodate it.

The foregoing facts provide a sufficient basis for a reasonable jury to conclude that the planter was a highway obstruction. Because the evidence supporting those facts was overwhelming and uncontroverted, we conclude that a reasonable jury could not have found otherwise. Accordingly, a reasonable jury also could not have found that the defendant had acted outside the scope of his authority when he removed the planter. Therefore, we conclude that the court properly refused to instruct the juiy on ultra vires acts. See Batick v. Seymour, supra, 186 Conn. 641.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff commenced an action against Maurice Roddy, GlenviUe News and Florist, Inc. (GlenviUe News), and Rock Spring Partners Limited Partnership (Rock Spring). The court rendered summary judgment in favor of GlenviUe News. FoUowing a trial, the court rendered judgment in favor of Rock Spring after the jury found that it had not acted negügently. Consequently, for the purpose of this appeal, Roddy is the only remaining defendant, and we refer to him in this opinion as the defendant.

       In her principal brief, the plaintiff claimed that the court improperly failed to find as a matter of law that the defendant was under a ministerial duty to construct a six inch curb at the site of her fall. The plaintiff withdrew this claim in her reply brief.

       An ultra vires act is an “act performed without any authority to act on the subject.” Black’s Law Dictionary (6th Ed. 1990) p. 1522. “Ultra vires act of municipality is one which is beyond powers conferred upon it by law.” Id.


author: DUPONT, J.

text:
    RICHARD R. PALKIMAS v. RITA J. LAVINE
    (AC 21434)
    Dranginis, Bishop and Dupont, Js.
    Argued March 28 —
    officially released August 13, 2002

      Richard H. G. Cunningham, for the appellant (plaintiff).

      James V. Somers, with whom were Erik J. Ness and, on the brief, John B. Farley and John W. Dietz, for the appellee (defendant).
   Opinion

DUPONT, J.

The plaintiff, Richard R. Palkimas, after a jury trial, appeals from the denial of his motion for judgment notwithstanding the general verdict for the defendant, Rita J. Lavine, and to set aside the verdict and to order a new trial. The only issue we need address on appeal is whether the trial court abused its discretion in failing to set aside the verdict and to order a new trial because of allegedly improper remarks during the closing argument of the defendant’s counsel.

The plaintiff claims that he was denied a fair trial because the remarks made by the defendant’s counsel during final argument appealed to the “bias of the jury,” invited the jury to ignore the whole body of evidence, and constituted unsworn testimony and improper vouching for a witness. The plaintiff objected to the remarks, but did not seek a curative instruction. The objection was overruled, and the court did not give a curative instruction. The plaintiffs motion rested on four claims, three of which were evidentiary and one of which related to the claim that the jury acted out of sympathy for the defendant, giving her “undue credence” because of the improper closing argument of the defendant’s counsel, which had been “permitted by the court.” The only claim with which we are concerned is whether the remarks of the defendant’s counsel in closing argument required the court to grant the plaintiffs motion to set aside the general verdict for the defendant and to order a new trial.

Before addressing whether the comments in this case were improper and, if so, whether their allegedly prejudicial character were a denial of the plaintiffs constitutional right to a fair trial, we must first consider the impact of the general verdict rule on the denial of the plaintiffs motion for a judgment notwithstanding the verdict.

There were no interrogatories in this case, and the jury, on its verdict form, stated that it found all of “the issues for the defendant,” thereby causing the principles of the general verdict rule to apply. The general verdict rule presumes that all disputed issues were found in favor of the prevailing party. Mather v. Griffin Hospital, 207 Conn. 125, 131, 540 A.2d 666 (1988).

The plaintiffs action was one in tort for the negligence of the defendant. The elements of an action based on negligence that must be proven to obtain a verdict in a plaintiffs favor are a duty of the defendant to the plaintiff, a breach by the defendant of that duty, proximate cause of the plaintiffs injuries arising from the breach and actual injury or damages. Bonan v. Goldring Home Inspections, Inc., 68 Conn. App. 862, 871, 794 A.2d 997 (2002). Unless the defendant’s negligence, that is, the breach of duty owed to the plaintiff, is the proximate cause of the plaintiffs injury, there can be no liability. Doe v. Manheimer, 212 Conn. 748, 755-57, 563 A.2d 699 (1989), overruled in part on other grounds, Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 608, 662 A.2d 753 (1995). In the event of a general verdict for a defendant, it is not known whether the jury found against the plaintiff because the defendant was not negligent or because the plaintiff had not proved that the defendant’s negligence was the proximate cause of any injuiy to the plaintiff. Dowling v. Finley Associates, Inc., 248 Conn. 364, 377-78, 727 A.2d 1245 (1999).

In this case, the plaintiff had to prove that the defendant was negligent and that her negligence was the proximate cause of any damage to the plaintiff. Proximate cause is an issue of fact. See Trzcinski v. Rickey, 190 Conn. 285, 295, 460 A.2d 1269 (1983). In a general verdict case, it is presumed that the issue of proximate cause was decided in favor of the prevailing party; West Haven Sound Development Corp. v. West Haven, 201 Conn. 305, 316, 514 A.2d 734 (1986); and it is presumed, if the defendant is the prevailing party, that the jury could have concluded that either (1) the defendant did not breach any statutory or common-law duty owed to the plaintiff, or (2) that there was such a breach, that is negligence, but that that negligence was not the proximate cause of the plaintiffs injuries. Trzcinski v. Rickey, supra, 295. Here, because the defendant admits her car struck the plaintiff’s truck, the jury could have concluded that the defendant was negligent, but that even if the defendant were negligent, that negligence was not the proximate cause of the defendant’s claimed injury 5and, therefore, that the defendant was not liable to the plaintiff.

The general verdict for the defendant requires us to presume that the plaintiff did not prove that the defendant was liable. The insufficiency of the evidence as to proximate cause supports the verdict. See Yeske v. Avon Old Farms School, Inc., 1 Conn. App. 195, 206, 470 A.2d 705 (1985).

If a judgment notwithstanding the verdict were rendered for the plaintiff in this case because of the remarks of the defendant’s counsel, the defendant herself would be “painted with the brush of [her] legal representative.” Id., 207. Such a result would be as inequitable to the defendant as a failure to order a new trial for the plaintiff would be, if the remarks did, in fact, deprive the plaintiff of a fair trial. The motion for a judgment notwithstanding the verdict was properly denied.

We next address whether the plaintiffs motion to set aside the judgment and for a new trial should have been granted in view of the remarks of the defendant’s counsel. When a verdict should be set aside because of improper remarks of counsel, rather than because of the insufficiency of the evidence to support the verdict, the remedy is a new trial. Id., 206-207. Our standard of review for such a claim is whether the court abused its discretion when it denied the motion. Skrzypiec v. Noonan, 228 Conn. 1, 10-11, 633 A.2d 716 (1993); Palomba v. Gray, 208 Conn. 21, 24, 543 A.2d 1331 (1988); see also Santa Maria v. Klevecz, 70 Conn. App. 10, 12, 800 A.2d 1186 (2002).

The plaintiff argues that the remarks of counsel caused the jury to act out of sympathy for the defendant, appealed to the “bias of the jury,” and constituted unsworn testimony and vouching for the witness. In support of that argument, he cites the reference by the defendant’s counsel to the defendant as “little Rita, five foot three, 133 pounds.” The plaintiff also cites to remarks such as, “[I]f my client were here, she’d say to you, ‘Make the system work. . . . Don’t reward [the plaintiff] for his conduct.’ ” The plaintiff also claims that the defendant’s counsel improperly testified about a conversation with his client that occurred in the courthouse hallway.

In her brief to this court, the defendant admits that her counsel’s remarks “were directed at inviting the jury to conclude that the defendant was a credible witness,” but argues that his remarks were not a personal guarantee of the defendant’s credibility. The defendant also admits in her brief that her counsel commented on a conversation he had had with her that was not in the record.

To determine if the plaintiffs motion to set aside the verdict and for a new trial should have been granted, we examine whether the court abused its discretion. The question is whether the remarks at closing argument went beyond or fell short of “a generous latitude in argument” generated by the “zeal of counsel.” (Internal quotation marks omitted.) Skrzypiec v. Noonan, supra, 228 Conn. 16. If the remarks deprived the plaintiff of a fair trial, the court would have abused its discretion when it denied the plaintiffs motion.

In determining whether there has been an abuse of discretion, every reasonable presumption should be given to the correctness of the court’s ruling. Santa Maria v. Klevecz, supra, 70 Conn. App. 12. The burden of proving that the remarks in closing argument deprived the complaining party of a fair trial he with that party. State v. Payne, 63 Conn. App. 583, 592, 777 A.2d 731 (2001), rev’d on other grounds, 260 Conn. 446, 797 A.2d 1088 (2002); see State v. Alexander, 254 Conn. 290, 303, 755 A.2d 868 (2000).

Recent cases examine the latitude of remarks of counsel in closing arguments of criminal trials. See, e.g., State v. Payne, 260 Conn. 446, 797 A.2d 1088 (2002); State v. Singh, 259 Conn. 693, 793 A.2d 226 (2002); State v. Thompson, 69 Conn. App. 299, 797 A.2d 539, cert. granted, 260 Conn. 936, 802 A.2d 90 (2002). It has not yet been decided in any Connecticut case of which we are aware whether a denial of a motion to set aside a verdict and for a new trial based on improper remarks during closing argument should be reviewed differently in civil and criminal cases because of the special role of a prosecutor as opposed to the role of counsel in civil cases.

In civil cases, where there has been an objection to the remarks or a motion for a curative instruction or a motion to set aside a verdict or for a new trial, as we have previously noted, the test is whether the court abused its discretion in denying the motion. Skrzypiec v. Noonan, supra, 228 Conn. 11; Palomba v. Gray, supra, 208 Conn. 24; Fabrizio v. Smith, 164 Conn. 385, 386, 321 A.2d 467 (1973). The same test has been used in some criminal cases. State v. Alexander, supra, 254 Conn. 303-304; State v. Hammond, 221 Conn. 264, 269-70, 604 A.2d 793 (1992); State v. Couture, 194 Conn. 530, 562, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985).

The phraseology to describe whether there has been an abuse of discretion in not setting aside a verdict and granting a new trial is somewhat different as between civil and criminal cases. It is unclear whether the different phraseology connotes a different level of egregiousness before concluding there was an abuse of discretion in not granting a new trial. In criminal cases, the defendant must prove “substantial prejudice” arising from the remarks. State v. Alexander, supra, 254 Conn. 303; State v. Richardson, 214 Conn. 752, 760, 574 A.2d 182 (1990). In civil cases, however, the harmed party must show “ ‘manifest injury’ ”; Skrzypiec v. Noonan, supra, 228 Conn. 16; or that the remarks were “unreasonable;” id., 15; or “flagrantly prejudicial.” Yeske v. Avon Old Farms School, Inc., supra, 1 Conn. App. 204.

It is apparent that the remarks during closing argument of a state’s attorney in a criminal case are examined with special scrutiny. The two most recent cases, State v. Payne, supra, 260 Conn. 446, and State v. Singh, supra, 259 Conn. 693, expressly limit all their analyses to prosecutors and their special role in presenting the summation of their cases to a jury. A state’s attorney in a criminal case has a special role, unlike that of any other attorney. “He is not only an officer of the court . . . but is also a high public officer, representing the people of the State .... By reason of his office, he usually exercises great influence upon jurors.” (Internal quotation marks omitted.) State v. Alexander, supra, 254 Conn. 302. A prosecutor, as a representative of the state, has a duty of fairness that “ ‘exceeds that of other advocates’ ” because he represents the public interest. State v. Payne, supra, 452. A prosecutor has a unique responsibility in our judicial system. State v. Singh, supra, 701.

In every case, both criminal and civil, involving improper argument, there are two questions. The first is whether the remarks were improper, and the second is whether, if the remarks were improper, a new trial is necessary. Under current case law, the test for whether there has been impropriety in the remarks of a prosecutor and whether a new trial must be ordered requires a more intense scrutiny in criminal cases than in civil cases because the duty of fairness on the part of a state’s attorney “ ‘exceeds that of other advocates.’ ” State v. Payne, supra, 260 Conn. 452. This does not excuse counsel, however, in civil cases from adhering strictly to the Rules of Professional Conduct regarding conduct during the trial and during closing argument.

Comments of attorneys that are proscribed in both civil and criminal cases are (1) comments on the veracity of a witness’ testimony, (2) personal expressions of opinion on evidence, (3) references to matters not in evidence and (4) appeals to the emotions, passions and prejudices of the jurors. State v. Singh, supra, 259 Conn. 702.

Closing argument in civil cases, deemed improper upon appellate review, but not sufficiently improper to warrant the granting of a motion to set aside the verdict and to order a new trial, includes calling the opposing side’s arguments a combination of “sleaze, slime and innuendo,” and characterizing the testimony of a defendant as “weasel words”; (internal quotation marks omitted) Rizzo Pool Co. v. Del Grosso, 232 Conn. 686-87 n.33, 657 A.2d 1087 (1995); or arguing that the defendants provided testimony to “save their filthy money”; (internal quotation marks omitted) Weller v. Fish Transport Co., 123 Conn. 49, 60, 192 A. 317 (1937); or asking the jurors to imagine that they had suffered the same injury when assessing damages, and discussing the defendant country club’s lack of insurance and the impact on the jury’s decision if one of the jurors’ children had visited the country club and was injured; Murray v. Taylor, 65 Conn. App. 300, 320-21, 782 A.2d 702, cert. denied, 258 Conn. 928, 783 A.2d 1029 (2001); or arguing that defense counsel used tactics like criminal defense lawyers in sexual assault cases. Nastri v. Vermillion Bros., Inc., 46 Conn. Sup. 285, 292, 747 A.2d 1069 (1998).

A verdict should be set aside and a new trial ordered, however, if counsel has misstated the law, despite a court’s prior ruling; Krupien v. Rai, 56 Conn. App. 247, 249, 742 A.2d 1270 (1999), cert. denied, 252 Conn. 931, 746 A.2d 793 (2000); or if counsel comments without evidence to support a statement that implies that if a verdict is rendered for a plaintiff, the financial burden on the defendant town will eliminate sports in that town. Fonck v. Stratford, 24 Conn. App. 1, 3, 584 A.2d 1198 (1991).

If the trial court determines that the remarks of counsel did jeopardize the right of a party to a fair trial by commenting on opposing counsel’s appearance or implying that he would resort to trickery to win his case, there is no abuse of discretion if the court grants a motion to set aside the verdict. Yeske v. Avon Old Farms School, Inc., supra, 1 Conn. App. 203-205; see also State v. Hammond, supra, 221 Conn. 288 (granting motion for new trial would not be abuse of discretion but denial of motion for new trial might be such an abuse). This is so because the trial court is in a better position than an appellate court to evaluate the damage done by remarks made in closing argument. Because it is difficult for an appellate court to view the remarks from the same vantage as the trial court, to divine on which side of the “impropriety line” the remarks fall, we give great weight to the trial court’s assessment of the situation. Skrzypiec v. Noonan, supra, 228 Conn. 10-11. “A verdict should be set aside if there has been manifest injury to a litigant, and it is singularly the trial court’s function to assess when such injury has been done since it is only that court which can appraise the atmosphere prevailing in the courtroom.” Yeske v. Avon Old Farms School, Inc., supra, 1 Conn. App. 205; see also Marko v. Stop & Shop, Inc., 169 Conn. 550, 558-59, 364 A.2d 217 (1975).

A trial court is invested with a large discretion with regard to arguments of counsel, and appellate courts should only interfere with a jury verdict if the discretion has been abused to the manifest injury of a party. Bryar v. Wilson, 152 Conn. 162, 165, 204 A.2d 831 (1964). We recognize that advocacy must be tempered by the professional responsibility of the attorney and that advocacy must be restrained when necessary by the court’s obligation to provide the parties a fair trial. Those factors limit the latitude allowed in closing argument and affect the discretion of the court in deciding motions for a new trial.

We now turn to the particular comments of the defense counsel in this case and their effect on the jury, in terms of the evidence. The crux of this case was the credibility of the plaintiff as to his claim of the proximate cause of his injuries, rather than the credibility of the defendant, whose account of the accident did not vary substantially from that of the plaintiff. The defendant could not testify, of course, as to the medical condition of the plaintiff.

The defense counsel’s comment about “little Rita,” although calculated to induce sympathy, was based on the defendant’s testimony that she was five feet, three inches, in height and weighed 133 pounds. Counsel’s remark about not rewarding the plaintiff for his conduct is ambiguous, but may have referred to his litigious past, which was in evidence. The rest of counsel’s comments related to the credibility of the defendant and counsel’s vouching for that credibility.

Clearly, the defendant’s attorney made improper remarks. He rendered an opinion as to the credibility of his client and recounted a conversation between him and his client that took place outside the courtroom. He violated rule 3.4 of the Rules of Professional Conduct, which provides in relevant part: “A lawyer shall not ... (5) [i]n trial . . . state a personal opinion as to the justness of a cause, the credibility of a witness, [or] the culpability of a civil litigant . . . .” See also Murray v. Taylor, supra, 65 Conn. App. 314 n.7.

The issues in this case were not complex, the trial was short and the transcript indicates that the defendant’s testimony could not have lasted for more than five minutes. The accident in this case was relatively minor, and no claim was made for damage to the plaintiffs truck. Neither the defendant nor a passenger in the plaintiffs truck was injured. On the basis of the evidence, the jury could have concluded that the plaintiffs pain and suffering were exaggerated, that he had no loss of income, that his complaints of injury were not causally related to the accident and that he had received treatment beyond what was medically indicated. The jury also could have concluded that the plaintiff had suffered similar injuries in the past from which he might still suffer, independent of any harm caused to him by any negligence of the defendant.

Although the defendant’s attorney rendered an opinion as to the credibility of the defendant, the crux of this case was not the defendant’s credibility, but the plaintiffs credibility. The comments by the defendant’s counsel were not lengthy, were not particularly inflammatory and not nearly as inflammatory as other comments in the previously cited civil cases that did require a new trial.

We rely on a line of appellate civil cases that view improper remarks from the prism of the trial court, whether granting a motion for new trial; Yeske v. Avon Old Farms School, Inc., supra, 1 Conn. App. 207; or denying a motion for a new trial. Murray v. Taylor, supra, 65 Conn. App. 300.

We conclude that the plaintiff received a fair trial and that the remarks, although improper, did not skew the result. The comments did not invite the jury to ignore facts, nor did the comments inflame its passions or emotions.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff filed one pleading, encompassing both the motion for judgment notwithstanding the verdict and the motion to set aside the verdict for the defendant and for a new trial.

       The other issues raised on appeal by the plaintiff relate to evidentiary rulings, which merit little consideration because all were within the discretion of the court. The factual basis for the plaintiffs complaint was a rear-end collision between the plaintiffs truck and the defendant’s car, which was immediately behind the plaintiffs truck in a line of traffic. The plaintiff claimed that the defendant was negligent because she (1) failed to keep a proper lookout for the defendant’s vehicle, (2) did not keep her car under control, (3) failed to apply her brakes, and (4) failed to keep a reasonable distance between her car and his vehicle as required by statute. The defendant denied the allegations of negligence and denied that as a result of her striking the rear of the plaintiffs truck that the plaintiff suffered any injuries or any loss of income.
      The court, in its memorandum of decision on the plaintiff’s motion, stated that on the basis of the evidence and the plaintiff’s testimony during cross-examination attacking his credibility, the jury could have found reasonably that the plaintiff “had not proven proximate cause or damages by a preponderance of the evidence.’’ The court noted that the defendant testified that he could not remember if he had been in any prior automobile accidents, although he had been in four prior accidents in which he suffered the same or similar injuries.
      The plaintiff alleged in his complaint that he had suffered a loss of income and loss of future earning capacity as a result of the accident. The court stated in its decision that “[w]ith regard to the claimed damages, the plaintiff testified that prior to the accident he was successful in the construction business. However, the plaintiff was unable to substantiate this testimony because, as he testified, he had not filed income tax returns for the years 1994 through 1999. The plaintiff also testified that a friend, Regina Muller, had loaned him approximately $250,000 for the construction project he was working on at the time of the accident. When questioned further about this loan, the plaintiff testified that he was paying Ms. Muller back, but could not say where he sends the payments, testifying only that Ms. Muller lives in South Africa or somewhere in Florida. Based on the foregoing, and other similar attacks on the plaintiffs credibility, the jury reasonably could have found that the plaintiff had not proven proximate cause or damages by a preponderance of the evidence.”

       No transcript of the court’s charge was provided on appeal. The parties agree, however, that there was no specific curative instruction relating to the remarks made in the defendant’s closing argument.

       The plaintiff did not claim any damages for property damage to his truck.

       A general verdict for a plaintiff may be set aside, if proximate cause could not be proven as a matter of law, because of an intervening act of a tortfeasor other than the defendant. Doe v. Manheimer, supra, 212 Conn. 748.

       A motion for a new trial in civil and criminal trials, unlike a motion for a judgment of acquittal in a criminal case, or a judgment notwithstanding the verdict in a civil case, does not relate to the sufficiency of the evidence to support the verdict. See State v. Hammond, 221 Conn. 264, 267, 604 A.2d 793 (1992).

       The relevant portions of the argument by the defendant’s counsel’s and the plaintiffs objection are as follows:
      “[Defendant’s Counsel]: Burden of proof, you’re going to hear that from the judge. Anybody can file a lawsuit about anything at any time, but they’ve got to come into court and they’ve got to prove it. They’ve got to prove their case to you. Well, what do you know? You sat here, you’ve listened to all the testimony, all of the evidence. You have enough. You know, you know the truth. The accident, you heard [the defendant]. How did [the defendant] come across? Did she come across candid? Rehearsed? Every question scripted out? Every answer practiced? No. I said . . . ‘Come in here,’ and she said, ‘[W]ell, can I tell them this?’ and ‘[C]an I tell them that?’ Well, no, you can’t. You just got to tell them the facts. She is like, ‘[W]ell, I want to tell them this, and I want to tell them how I feel and I want to tell them this.’ And I said, ‘[W]ell, unfortunately, you can’t.’ I said, ‘[T]hey are bright people, they are going to know—they are going to know how you feel. They are going to see that. They are going to evaluate your testimony and what you said.’
      “[Plaintiffs Counsel]: Your Honor, I—I would not normally object, but he is testifying, and that is not permitted. It’s something which is not in the record.
      “The Court: It’s final argument.....
      “[Plaintiffs Counsel]: It’s something which clearly is—is beyond any record.
      “The Court: Objection is overruled. You may continue.
      “[Defendant’s Counsel]: Thank you, Your Honor. You heard [the defendant’s] testimony. You decide for yourself who was telling the truth, who is candid. I said . . . ‘[J]ust come on in here, be honest, be yourself, tell them what happened.’ She told you what happened. There is no dispute. It was a bump. She wasn’t speeding down some hill and slammed into him— into his car. That’s what they'd have you believe. Is that candid? Is that frank? Is that honest? Is that credible? No, it’s not what happened. There is no evidence of that.”

       The Supreme Court’s decision in State v. Payne, supra, 260 Conn. 446, is not based upon a claim of a due process violation, but upon the supervisory powers of appellate courts to govern the fairness of trials. Even if the remarks were not a due process violation based on the particular trial, a verdict must be set aside if a pattern of improper conduct exists, based on other trials involving the same state’s attorney. Id., 451-52.

       We note that the rules of practice in providing the requirements for the granting of a motion for a new (rial in a criminal case use the term “shall”; see Practice Book § 42-53; whereas in speaking of a new trial in a civil case, the term “may” is used. See Practice Book § 16-37.


author: FOTI, J.

text:
    WEBSTER BANK v. JOANNA V. ZAK ET AL.
    (AC 20906)
    Foti, Mihalakos and Daly, Js.

      Argued May 30 —
    officially released August 13, 2002

      Kerry M. Wisser, with whom was Nathan A. Schatz, for the appellant (defendant MFR of East Hampton, LLC).

      Jeffrey T. Beatty, with whom, on the brief, was Richard J. Beatty, for the appellee (substitute plaintiff EMC Mortgage Corporation).
   Opinion

FOTI, J.

This appeal in a foreclosure action returns to this court on remand from our Supreme Court. Webster Bank v. Zak, 259 Conn. 766, 792 A.2d 66 (2002). The defendant MFR of East Hampton, LLC (MFR), appeals from the trial court’s judgment of foreclosure, claiming that the court improperly concluded that a prior judgment conclusively established the principal amount of debt owed by MFR to the substitute plaintiff, EMC Mortgage Corporation (EMC). The central issue in this appeal is whether it was improper for the court to determine that EMC’s amended complaint did not vacate the entire previous judgment, which would have resulted in opening the pleadings as to all issues, including liability and the amount of debt. We affirm the judgment of the trial court.

Our Supreme Court set forth the facts and procedural history of this case in Webster Bank v. Zak, supra, 259 Conn. 766. “On July 16, 1997, the plaintiff, Webster Bank (bank), brought an action seeking to foreclose a mortgage on three par cels of land in Clinton, of which the named defendant, Joanna V. Zak (Zak), was the titleholder of record. On November 24, 1997, the trial court, Arena, J., rendered a judgment of foreclosure by sale. After determining the amount of the debt due on the note and the costs associated with the foreclosure action, the court scheduled the sale date for July 18, 1998.

“The bank subsequently assigned its interest in the note and mortgage to EMC .... Thereafter, EMC moved to substitute itself as the plaintiff in the foreclosure action and Zak moved to extend the foreclosure sale date. On July 13, 1998, the trial court granted both motions. The court also opened the November 24,1997 judgment and rendered a new judgment of foreclosure by sale with a sale date of September 19, 1998.

“On September 17,1998, Zak filed in the United States Bankruptcy Court for the District of Connecticut for protection under chapter 13 of the United States Bankruptcy Code, which was later converted to a chapter 7 bankruptcy. See 11 U.S.C. § 101 et seq. The filing of the bankruptcy petition stayed the trial court proceedings, and the foreclosure sale did not occur as scheduled. Thereafter, EMC filed in the Bankruptcy Court a motion for relief from the bankruptcy stay. On January 5,1999, the Bankruptcy Court granted EMC’s motion for relief from the stay on the condition that Tracy M. Saxe, the trustee of Zak’s bankruptcy estate, be cited in as a party defendant in the foreclosure action. EMC subsequently moved in the trial court to open the judgment of foreclosure and to amend the complaint to cite in Saxe as a party defendant. On February 8, 1999, the trial court opened the judgment and granted EMC’s motion to file an amended complaint. EMC subsequently filed an amended complaint naming Saxe as a party defendant.

“On March 31, 1999, Zak conveyed all of her right, title and interest, including her equity of redemption, in the foreclosed property to MFR by quitclaim deed. Saxe was not a signatory to the deed. Thereafter, MFR moved to be cited in as a party defendant, pursuant to General Statutes § 52-107 and Practice Book § 9-6, claiming that it was ‘the record titleholder of the property that is the subject of the foreclosure, and any judgment of foreclosure will necessarily affect it by foreclosing out its interest as the titleholder . . . .’ MFR furnished a copy of the quitclaim deed in support of its motion. On May 4, 1999, without objection from EMC or Saxe, the trial court granted MFR’s motion. EMC subsequently filed a second amended complaint in which it named MFR as a party defendant, stating: ‘By her Quitclaim Deed dated March 31,1999, and recorded April 1, 1999 ... on the Clinton Land Records, [Zak] conveyed her interest in the mortgaged premises to [MFR].’ MFR is the only defendant involved in this . . . appeal.

“MFR filed an answer and special defense to EMC’s second amended complaint. In its special defense, MFR claimed that EMC’s failure to provide the appropriate notice of default pursuant to the requirements of the mortgage agreement barred it from instituting foreclosure proceedings. No other party filed a pleading in response to EMC’s second amended complaint.

“On October 8,1999, EMC filed a motion for summary judgment. EMC claimed that MFR was bound by the trial court’s November 24, 1997 judgment as Zak’s successor in interest, and was precluded, therefore, from asserting new defenses to liability that Zak had not asserted prior to that judgment. Similarly, EMC contended that MFR was bound by the amount of the mortgage debt as determined by the trial court in connection with that judgment. MFR opposed the motion for summary judgment as to both the issue of liability and the amount of the debt. On February 8, 2000, the trial court granted summary judgment on the issue of liability, and scheduled a hearing on the amount of the debt for May 31, 2000.

“At that hearing, EMC claimed that the trial court should calculate the amount by adding to the debt established at the November 24,1997 judgment the per diem interest that had accrued on that debt since that date. MFR contended, in response, that EMC’s second amended complaint citing in MFR opened the pleadings and, thereby allowed MFR to assert new defenses to liability, as well as to contest the amount of the debt established by the trial court’s November 24, 1997 judgment. Therefore, MFR claimed, the court should hear evidence regarding the amount of the debt.

“In its memorandum of decision, dated June 5, 2000, the trial court determined that ‘each opening of the original judgment of foreclosure, dated November [24], 1997, was for a limited purpose: on July 13, 1998, to substitute EMC as successor plaintiff to [the bank]; on July [13], 1998, to set a new sale date of September 19, 1998; on February 8, 199[9], to cite in [Saxe] as trustee of the bankruptcy estate of [Zak].’ It further determined that ‘[n]othing in the record indicates that the judgment of foreclosure by sale was ever vacated.’ The court concluded ‘that the debt established by the judgment of November [24], 1997, is [therefore] the controlling debt in this [foreclosure] action. . . .’ [T]he trial court rendered a judgment of foreclosure by sale, and calculated the amount of the debt using the amount of the debt established at the November 24, 1997 judgment and adding the per diem interest that had accrued since that date.” Webster Bank v. Zak, supra, 259 Conn. 768-72. MFR appeals from that judgment.

MFR claims that the court improperly held that EMC’s second amended complaint did not open and vacate the entire November 24, 1997 judgment. Stated otherwise, MFR claims that the “new complaint gives all parties the opportunity to start the case anew for all purposes,” and that the court’s decision is contrary to established procedural rules and violative of due process. We disagree.

We first set forth the legal principles that govern our resolution of that issue. We review the court’s decision not to open the pleadings as to all issues under an abuse of discretion standard. Townsley v. Townsley, 37 Conn. App. 100, 104, 654 A.2d 1261 (1995); see Wagner v. Clark Equipment Co., 259 Conn. 114, 128, 788 A.2d 83 (2002). Further, “ ‘[a] foreclosure action constitutes an equitable proceeding. ... In an equitable proceeding, the trial court may examine all relevant factors to ensure that complete justice is done. . . . The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court.’ . . . This court must make every reasonable presumption in favor of the trial court’s decision when reviewing a claim of abuse of discretion. Yanow v. Teal Industries, Inc., 196 Conn. 579, 583, 494 A.2d 573 (1985).” (Citation omitted.) People’s Bank v. Letendre, 57 Conn. App. 645, 646, 749 A.2d 1227 (2000); see 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 35, pp. 159-60. “Our review of the trial court’s exercise of legal discretion is limited to the question of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did.” People’s Bank v. Letendre, supra, 646.

Because MFR relies on the second amended complaint as the vehicle for opening the November 24,1997 judgment as to all issues in the case, including liability and the amount of debt, we focus our attention on that complaint and its attendant circumstances.

Following its acceptance of the quitclaim deed from Zak, MFR moved to be cited in as an additional party defendant. The court properly granted MFR’s motion. In response, the court ordered EMC to amend its complaint by naming MFR as a party defendant. To satisfy the court’s order, EMC filed a motion requesting leave to do so. The motion specifically stated its limited purpose as “adding MFR . . . as a party defendant.” MFR’s motion to be cited in predicated the court’s order for EMC to amend its complaint. In other words, but for MFR’s motion to be cited in, EMC never would have had to file the second amended complaint. The filing of the second amended complaint, therefore, was compulsory in nature and not voluntary.

MFR, nevertheless, argues that the filing itself resulted in the opening of the judgment, as if the court never had rendered judgment, thereby allowing MFR to challenge its liability and debt under EMC’s note and mortgage. In support of its argument in that regard, MFR relies on Practice Book § 10-61 in conjunction with Clover Farms, Inc. v. Kielwasser, 134 Conn. 622, 59 A.2d 550 (1948), and Antman v. Connecticut Light & Power Co., 117 Conn. 230, 167 A. 715 (1933), overruled in part, Buck v. Morris Park, Inc., 153 Conn. 290, 293, 216 A.2d 187 (1965), appeal dismissed, 385 U.S. 2, 87 S. Ct. 33, 17 L. Ed. 2d 2 (1966). MFR’s reliance on such authority, however, is misplaced. Practice Book § 10-61 simply does not limit the court’s discretion to require an amended pleading for a limited purpose without vacating an entire previous judgment. MFR would have this court read Practice Book § 10-61 as absolutely requiring entire judgments to be opened and vacated upon the filing of an amended complaint, and to do so in complete disregard of judicial discretion. In light of the circumstances of this case, we conclude that Practice Book § 10-61 has no bearing on the court’s decision not to open the judgment as to all issues upon EMC’s filing of its court-ordered second amended complaint.

MFR’s reliance on Antman and Clover Farms, Inc., is equally misplaced. In its appellate brief, MFR cites Antman for the proposition that the “filing of [an] amended complaint operate [s] as a withdrawal of the original, and thereafter the latter . . . can furnish no basis for judgment.” In providing such a quotation for this court, MFR conveniently chose to omit from it the word “voluntary,” which appears directly before the word “filing” in the quotation from Antman. Antman v. Connecticut Light & Power Co., supra, 117 Conn. 234. Such an important omission transforms and expands the court’s holding into something it is not. Antman unequivocally dealt with a motion to revise a plaintiffs original complaint, which was followed by the plaintiffs voluntary filing of an amended complaint. Antman, therefore, is factually distinguishable and lends no support to MFR’s arguments. Additionally, the one paragraph per curiam decision in Clover Farms, Inc., briefly addresses a motion to erase and is devoid of any factual similarity to the present case. Consequently, Clover Farms, Inc., cannot support MFR’s claim that in this case, “upon [the] granting of [a] motion to open, [a] prior judgment [is] rendered ineffective.”

Having disposed of MFR’s arguments regar ding the survival of the November 24, 1997 judgment, we again note that in its memorandum of decision, the court held that “[n]othing in the court record indicates that the judgment of foreclosure by sale was ever vacated . . . [and that] any opening of the judgment was limited to a specific purpose.” Because EMC’s second amended complaint was ordered by the court, and its motion for leave to revise the complaint was specifically limited to the purpose of naming MFR as a substitute party to the action, the court acted within its sound discretion in deciding that the November 24, 1997 judgment of debt was opened only for limited purposes and never was vacated. Moreover, the second amended complaint conformed to the limited purpose of the court order and subsequent motion because the only addition to the complaint was the naming of MFR as a party defendant.

Thereafter, the court granted EMC’s motion for summary judgment as to liability and scheduled a hearing in damages. At the hearing in damages, the court ruled the November 24, 1997 judgment of debt to be the law of the case. “The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked. ... In essence it expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power. . . . New pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored. . . . But a determination so made is not necessarily to be treated as an infallible guide to the court in dealing with all matters subsequently arising in the cause. . . . Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance.” (Citations omitted; internal quotation marks omitted.) Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982).

In making its ruling, the court explained that the judgment of debt had not been opened and that it had been established by undisputed evidence, namely, an affidavit to which Zak took no exception. Having already conclusively established the principal debt, the court limited the hearing in damages to an adjustment for “updating the debt.” Because the court, sitting in equity, was of the opinion that the judgment of debt was correctly decided and that no overriding circumstances were present to rule otherwise, we conclude that the court properly determined the judgment of debt to be the law of the case.

MFR further claims that “the default by another party . . . deprived MFR of its constitutional right to procedural due process.” Specifically, MFR emphatically argues that due process requires it to get a meaningful hearing regarding all aspects of the debt because Zak’s default, along with the court’s subsequent determination of debt, which was based on an uncontested affidavit, cannot deprive MFR of its rights to challenge that debt. We disagree.

The “[fundamental tenets of due process . . . require that all persons directly concerned in the result of an adjudication be given reasonable notice and the opportunity to present their claims or defenses. . . . Moreover, [t]he guarantee of procedural due process requires that persons whose rights are to be affected have a right to notice and an opportunity to be heard at a meaningful time and in a meaningful manner.” (Citation omitted; internal quotation marks omitted.) Henriquez v. Allegre, 68 Conn. App. 238, 245, 789 A.2d 1142 (2002).

Long before MFR gained any interest whatsoever in the foreclosed real estate, a notice of lis pendens was filed on the land records. “A notice of lis pendens is appropriate in any case where the outcome of the case will in some way, either directly or indirectly, affect the title to or an interest in real property. ... As [General Statutes] § 52-325 (a) provides, the purpose of [notice of lis pendens] is to bind any subsequent purchaser or encumbrancer as if he were made a party to the action described in the lis pendens. [A] notice of lis pendens ensures that the [litigant’s] claim cannot be defeated by a prejudgment transfer of the property.” (Internal quotation marks omitted.) Cadle Co. v. Gabel, 69 Conn. App. 279, 286, 794 A.2d 1029 (2002); see General Statutes § 52-325.

MFR knowingly and willingly stepped into Zak’s shoes when it accepted the quitclaim deed from her for the foreclosed property. Because Zak had a meaningful opportunity to be heard at a meaningful time and in a meaningful manner, MFR had the same. The notice of lis pendens served to bind MFR as if it had been a party to the foreclosure action against Zak, which was the same action during which the court received evidence regarding her liability and debt on the note and mortgage. As a result, MFR is bound by Zak’s failure to plead and subsequent default, as well as by the fact that she did not contest the amount of the debt. MFR, therefore, cannot now assert defenses that Zak failed to assert. In fact, MFR has no legal ground on which to stand because “[t]he doctrine underlying lis pendens is that a person who deals with property while it is in litigation does so at his peril . . . .” (Internal quotation marks omitted.) Williams v. Bartlett, 189 Conn. 471, 480, 457 A.2d 290, appeal dismissed, 464 U.S. 801, 104 S. Ct. 46, 78 L. Ed. 2d 67 (1983).

Finally, in support of its decision not to allow MFR to contest the debt, the court cited the public policy of maintaining certainty and stability in foreclosure actions. MFR, however, asserts otherwise, claiming that such policy provides no justification for the court’s judgment. We respond to that argument because the facts of this case demonstrate precisely why public policy should prevent MFR from contesting what already has been determined.

As the court aptly stated, “[to] allow such postjudgment challenges to the debt would create chaos and instability to foreclosure judgments. The mere substitution of a judgment debtor and mortgagor in a foreclosure action cannot be a ground for the challenge of the judgment debt.” On the other hand, MFR claims that any “instability in a prior judgment of foreclosure [in this case] was caused by the reopening of the judgment of foreclosure and the filing of an amended complaint to allow MFR to be cited in as a party . . . [and, that] MFR was not amere substitute defendant.” MFR further claims that allowing it to contest the debt would not “prevent the conclusion of . . . foreclosure action[s] by permitting . . . property to be repeatedly conveyed to other entities before there could be any final adjudication of the issues” because “the court is able to use its broad equitable powers inherent in any foreclosure action to restrain any such abuse of the foreclosure process.”

MFR fails to recognize that if the court allowed it to challenge the November 24, 1997 judgment of debt, the court would open the door for parties similarly situated to contest judgments of foreclosure. Significantly, such a decision would severely undermine the public policy underlying notices of lis pendens because it would result in making them legally impotent once the judgment debtor and mortgagor conveys the foreclosed property to a third party. That would inevitably result in delay and uncertainty for existing and future foreclosure actions while causing increased litigation and the needless expenditure of valuable judicial resources. Further, because MFR is legally considered to have been a party to all the events occurring subsequent to the filing of the lis pendens in this action, allowing MFR to contest the debt at this stage would be tantamount to giving it a second chance while unnecessarily penalizing the plaintiff by requiring it to relitigate the debt a second time; such a result is contrary to fundamental fairness. Accordingly, the public policy considerations that the court properly relied on are aimed at parties such as MFR, a mere substituted judgment debtor and mortgagor in a foreclosure action, and this case is one in which the court properly invoked such policy via its broad discretionary power in foreclosure actions.

Sitting in equity, the court properly considered all of the relevant factors in this case and acted within its sound discretion by not opening the November 24,1997 judgment of debt and by ruling it to be the law of the case. Further, in considering the equities of this case, the court properly struck the balance in favor of EMC and the public policies underlying the stability of foreclosure actions as well as the policies underlying the notice of lis pendens. Equity favors EMC in this case, and MFR cannot now attempt to play the victim, especially in light of the fact that any interest MFR gained in the foreclosed property was acquired with full notice of all claims and judgments against it. Therefore, the court correctly applied the law and could reasonably, in all respects, have reached the conclusions that it did.

The judgment is affirmed and the case is remanded for the purpose of setting a new sale date.

In this opinion the other judges concurred.

       Prior to the appeal, MFR appealed to this court from the trial court’s judgment of foreclosure. See Webster Bank v. Zak, 61 Conn. App. 402, 763 A.2d 1090 (2001). We, however, without reaching the merits of MFR’s claim, “sua sponte, reversed and remanded the case to the trial court for the purpose of making factual findings to determine whether [MFR had] standing to assert its claim to an interest in the property under foreclosure and to otherwise participate in the proceedings.” (Internal quotation marks omitted.) Webster Bank v. Zak, supra, 259 Conn. 772-73. Our Supreme Court reversed our judgment and held that MFR had standing to assert its claim. Id., 783. We now reach the merits of MFR’s claim.

       “Also included as defendants in the bank’s foreclosure action were Kenneth A. Zak, an original mortgagor of the properly who had since transferred his interest to Zak, and the following parties, all of which claimed some interest in the mortgaged properly: GTT Corporation, as trustee of Oregon Properties Realty Trust (GTT); Jonathan Googel; Stephen J. Dellaquila; New Haven Savings Bank; Ferndale Condominium Association, Inc.; Boston Safe Deposit and Trust Company; the state of Connecticut; and the United States of America. The trial court subsequently granted motions to cite in MFR, Zak’s successor in interest to the property, and Tracy M. Saxe, the trustee of Zak’s bankruptcy estate, as defendants and a motion to substitute Donald Mondani as a defendant for GTT.” Webster Bank v. Zak, supra, 259 Conn. 768-69 n.1.

       General Statutes § 52-107 provides in relevant part: “If a person not a party has an interest or title which the judgment will affect, the court, on his application, shall direct him to be made a party.”
      Practice Book § 9-6 provides in relevant part: “Any person may be made a defendant who has or claims an interest in the controversy, or any part thereof, adverse to the plaintiff, or whom it is necessary, for a complete determination or settlement of any question involved therein, to make a party. . . .”

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

       We also note that because “[t]he design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.” Practice Book § 1-8. Further, the “[rjules of practice must be construed reasonably and with consideration of this purpose. . . . Rules are a means to justice, and not an end in themselves; their purpose is to provide for a just determination of every proceeding.” (Internal quotation marks omitted.) Tolland Bank v. Larson, 28 Conn. App. 332, 335, 610 A.2d 720 (1992). As we will discuss, had the court allowed MFR to contest the prior judgment of debt, it would have required EMC to relitigate an already established debt and it would have undermined important public policies to the contrary of such a decision.

       The judgment was opened two times prior to the naming of MFR as a defendant for the limited purposes of extending the sale date and for adding Saxe as a party defendant.

       “The law of the case doctrine applies only to subsequent proceedings in the same case." (Emphasis in original.) Forte v. Citicorp Mortgage, Inc., 66 Conn. App. 475, 481, 784 A.2d 1024 (2001). The doctrine, therefore, applies to the present case.

       General Statutes § 52-325 (a), entitled “Notice of lis pendens,” provides in relevant part: “In any action in a court of this state or in a court of the United States (1) the plaintiff or his attorney, at the time the action is commenced or afterwards, or (2) a defendant, when he sets up an affirmative cause of action in his answer and demands substantive relief at the time the answer is filed, if the action is intended to affect real property, may cause to be recorded in the office of the town clerk of each town in which the property is situated a notice of lis pendens, containing the names of the parties, the nature and object of the action, the court to which it is returnable and the term, session or return day thereof, the date of the process and the description of the properly .... Such notice shall, from the time of the recording only, be notice to any person thereafter acquiring any interest in such property of the pendency of the action; and each person whose conveyance or encumbrance is subsequently executed or subsequently recorded or whose interest is thereafter obtained, by descent or otherwise, shall be deemed to be a subsequent purchaser or encumbrancer, and shall be bound by all proceedings taken after the recording of such notice, to the same extent as if he were made a party to the action. . . .”