author: PELLEGRINO, J.

text:
    WU CHEN v. GESNER BERNADEL ET AL.
    (AC 27101)
    Schaller, Lavine and Pellegrino, Js.

      Argued March 26
    officially released June 12, 2007

      Sarah F. DePanfilis, with whom, on the brief, was Robert O. Hickey, for the appellant (defendant).
   Opinion

PELLEGRINO, J.

The defendant Gesner Bemadel appeals from the judgment of the trial court granting the application for a prejudgment remedy filed by the plaintiff, Wu Chen. On appeal, the defendant claims that the court improperly concluded that he could be held liable for the plaintiffs injuries under the family car doctrine, which has been codified as General Statutes § 52-182, because (1) he was not the owner of the car and exercised no control over the use of the car, and (2) the operator of the car was not a member of the defendant’s family. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the defendant’s appeal. On November 5, 2004, the defendant’s son, Jhimy Bemadel, and a friend, Max Desrosiers, were driving to Connecticut from New York. As per Jhimy Bemadel’s request, Desrosiers was driving the car, which was registered in the defendant’s name. While at a toll booth in New York, the plaintiff got out of his car to inspect the car’s muffler and was hit by the defendant’s car. As a result of this incident, the plaintiff has undergone several surgeries on both of his legs, and his right leg eventually was amputated above the knee.

In April, 2005, the plaintiff filed an application for a prejudgment remedy, along with an affidavit and a direction for attachment of the defendant’s property, in the amount of $2.5 million. The plaintiff claimed that the accident and his resulting injuries were caused by Desrosiers’ negligence and that the defendant, as the registered owner of the vehicle, was vicariously hable.

On July 25, 2005, the court held a hearing on the plaintiffs application for a prejudgment remedy. In its revised memorandum of decision filed March 14, 2006, the court granted the plaintiffs application, authorizing him to attach the defendant’s assets in the amount of $2.5 million. The court found: “Evidence indisputably established that [the defendant] was the owner of the car. . . . The court finds that the son had general authority to use the car for his own pleasure and convenience. . . . [T]he court concludes that the defendant . . . may be held liable for the alleged negligence of an operator delegated by his son to operate the family car at the pleasure and for the convenience of [his] son.” (Citations omitted.) This appeal followed. Additional facts will be set forth as necessary.

“This court’s role on review of the granting of a prejudgment remedy is very circumscribed. It is not to duplicate the trial court’s weighing process, but rather to determine whether its conclusion was reasonable. In the absence of clear error, this court should not overrule the thoughtful decision of the trial court, which has had an opportunity to assess the legal issues which may be raised and to weigh the credibility of at least some of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Kinsale, LLC v. Tombari, 95 Conn. App. 472, 475, 897 A.2d 646 (2006).

“A hearing on an application for prejudgment remedy is not a full-scale trial on the merits of the plaintiffs’ claims . . . but rather concerns only whether and to what extent the plaintiff is entitled to have property of a defendant held in custody of the law pending final adjudication of the merits of the action. . . . [A]n appellate court is entitled to presume that the trial court acted properly and considered all the evidence.” (Citation omitted; internal quotation marks omitted.) Doe v. Rapoport, 80 Conn. App. 111, 115-16, 833 A.2d 926 (2003). “The [trial] court’s role in such a hearing is to determine probable success by weighing probabilities. . . . [T]his weighing process applies to both legal and factual issues.” (Internal quotation marks omitted.) Id., 117.

In this case, we must determine whether the court’s conclusions that the defendant was the owner of the vehicle in question, that he maintained it as a family car for the benefit of his son and that the son had general authority to give permission to a third party, in this case Desrosiers, the alleged tortfeasor, to operate the vehicle, were reasonable. We agree with the court’s findings and conclude that they were reasonable and not clearly erroneous.

I

We first address the issue of whether the defendant owned and maintained the vehicle as a family car in accordance with § 52-182. The court found that the evidence was indisputable that the defendant was the owner of the car. During the hearing on the application for a prejudgment remedy, the defendant testified that the car was registered in his name but attempted to deny “ownership” by arguing that he cosigned the loan for the car only so that his son would have a car, that the defendant never used the car and that his son was free to use the car as he pleased. We are not persuaded.

In his brief, the defendant argues that although the car was registered in his name, he was not the owner of the car because he did not maintain any control of the vehicle, and, therefore, the family car doctrine is inapplicable to the facts of this case. In support of his argument, the defendant relies on Cook v. Nye, 9 Conn. App. 221, 518 A.2d 77 (1986). In Cook, this court recognized that “when a car is maintained by its owner for the general use and convenience of his or her family, the owner is jointly and severally liable for the negligence of a family member, who, having general authority to drive the car, uses it negligently while embarked on a family purpose, that is, for the pleasure or convenience of the family as a unit, or of an individual member of it.” (Emphasis in original; internal quotation marks omitted.) Id., 225. This court further noted: “This rule is grounded in the belief that one who chooses to conduct his or her activities through others is nonetheless required to conduct them so that third parties are not injured by a breach of any legal duty on the part of those acting for the principal while they are acting on behalf of and within the scope of authority granted by the principal. When a member of a family maintains a car for the pleasure, use and convenience of the family, and its purposes, he or she makes such pleasure and use a personal concern, thereby making those family members who use or enjoy the car his or her agents, as if they were pursuing the affairs of the owner!' (Emphasis added.) Id., 225-26.

The facts underlying Cook are similar to those in the present case. In that case, the defendant father was the registered owner and the insured on the vehicle that the defendant daughter was driving when the collision occurred. Id., 222-23. At the time of the incident, the defendant daughter resided with her parents. Id., 223. The defendant father claimed that he was not the “ ‘real owner’ ” of the car, that the car was not being used for a family purpose because his daughter alone used the car, that she never needed her father’s permission to do so, that she had exclusive possession of the car keys and that she maintained and serviced the vehicle with her own funds. Id., 223. This court noted, however, that “[a] parent’s retention of title to a car has frequently been sufficient justification for application of the family car doctrine when the doctrine is otherwise applicable, even if the vehicle has been completely paid for by the child in question and the child has beneficial ownership.” (Emphasis added.) Id., 227. We further noted that this rule holds true as long as it has been “shown that the driver has received general authority from the owner to use the car for a family purpose, that is, for the pleasure or convenience of the family or a member of it.” (Emphasis added.) Id., 228. This court concluded that the defendant father did not satisfy his burden of proof to rebut the presumption provided under § 52-182 because he was the registered owner of the vehicle, and he lent his daughter money for the down payment on the car. Id., 227-28.

In the present case, at the hearing on the application for a prejudgment remedy, the defendant testified that he was the registered owner of the car and that the car was insured in his name as well as his son’s name. He also testified that although he cosigned the loan for the car, he never drove the car and that his son used the car as he pleased. The record indicates that at the time the incident occurred, the son was living in the defendant’s home. It is clear from the record that the defendant wanted his son to have a car for the son’s convenience. The defendant testified that he wanted his son to have a car because his son worked and was also a student at the time.

On the basis of the rules and principles set forth in Cook v. Nye, supra, 9 Conn. App. 221, and our review of the record, we conclude that the court’s finding that the defendant was the owner of the vehicle in question was not unreasonable. The defendant testified that the car was registered in his name and insured in his name. The defendant argues, however, that the car dealership where the vehicle was purchased handled the filing of the certificate of registration with the department of motor vehicles and that the dealership inadvertently registered the car in the defendant’s name, rather than in his son’s name. There was no testimony from the defendant about this alleged error, and the testimony from his son sheds very little light on this issue. The son testified: “My only disagreement is that . . . there are documents where it only says my name for the car. There is also a document where it says my name and my father’s name under it. ... I really don’t understand how [registration] works or why my father’s name is on it.” Additionally, although the son testified that the car was purchased in the summer of 2002, approximately two and one-half years before the incident occurred, there was no testimony from the defendant or his son that any attempts were made by either party, during this span of time, to rectify this alleged error.

Finally, contrary to the defendant’s argument, he did in fact exercise a degree of control over his son’s use of the car, by granting his son general authority to use the vehicle as he pleased. We note that had it not been for the defendant’s assistance, the son would not have been able to get the car. It was not until the defendant granted general authority to his son that he relinquished full control over his son’s use of the car, and, in accordance with Cook, the son became an agent of the defendant. See Cook v. Nye, supra, 9 Conn. App. 225-26. As such, any use or enjoyment the son received from the car was as an agent of the defendant. See id. (“[w]hen a member of a family maintains a car for the pleasure, use and convenience of the family ... he or she makes such pleasure and use a personal concern, thereby making those family members who use or enjoy the car his or her agents, as if they were pursuing the affairs of the owner” [emphasis added]). The defendant, therefore, is liable for any injuries to third parties, resulting from the negligent conduct or breach of duty by his agent, who was acting within the scope of the general authority granted to him by the defendant. See id. On the basis of the foregoing, we conclude that the court’s findings were not clearly erroneous.

II

The defendant’s final claim is that the family car doctrine is not applicable because Desrosiers, who is not a member of the defendant’s family, was driving the car at the time of the incident, rather than the defendant’s son, and that the defendant, therefore, could not be subjected to liability under the family car doctrine. We disagree.

Our Supreme Court was presented with a similar situation in Dibble v. Wolff 135 Conn. 428, 65 A.2d 479 (1949). In that case, the defendant father was the owner of a car driven by his daughter, who at the time was married and did not reside with her parents. Id., 431. On the day of the incident, the daughter and her mother were returning to the parents’ home after a shopping trip, when the two were involved in a collision due to the daughter’s negligence. Id., 432. Our Supreme Court stated that the issue to be resolved in that case was as follows: “The ultimate question is . . . whether under the circumstances shown . . . the fact that the defendant’s daughter was not a member of [the defendant’s] household renders the family car doctrine inapplicable. . . . Assuming for the purposes of this decision that the defendant could not be held liable on the theory that his daughter was a member of the family within the family car doctrine, it does not necessarily follow that no recovery can be had .... The question decisive of this appeal is whether on this record the daughter’s negligence was that of her mother within the doctrine.” (Citations omitted.) Id., 433-34. The court found that the mother’s status as a member of her husband’s household was sufficient to invoke the family car doctrine because, when the defendant intended that the vehicle be used for his wife’s pleasure and convenience, he gave his wife general authority to delegate the responsibility of operating the vehicle to their daughter. Id., 434-35.

Similarly, in the present case, Desrosiers, although not a member of the defendant’s household, was authorized by the defendant’s son, a member of the defendant’s household, to operate the vehicle, because the son had general authority from his father to use the car for his own pleasure and convenience. In light of the evidence in the record, we conclude that Desrosiers’ negligence could be considered that of the defendant’s son under the family car doctrine. See Dibble v. Wolff, supra, 135 Conn. 434-35.

Finally, in its memorandum of decision, the court cited Costanzo v. Sturgill, 145 Conn. 92, 139 A.2d 51 (1958), in support of its finding that the son could give a third party permission to operate the family car because he had general authority to use the car for his pleasure and convenience. In Costanzo, the defendant father gave his son a vehicle that he owned so that the son could more conveniently travel from the father’s farm in Maryland to a naval base where the son was stationed. Id., 93. When he gave the car to his son, the father also gave his son instructions regarding its use. The son was told that the car was to be used solely for the purpose of travel to and from the farm and that he could not allow anyone else to drive the car or ride in the car. Id. The son exceeded the scope of the limited authority granted to him by his father when he used the car to take himself and several friends to a party in New Jersey and then asked one of the friends, the other defendant in the case, to drive him home from the party because he was not familiar with the roads in New Jersey. Id., 93-94. The friend agreed, and shortly thereafter, he drove the car into a tree in Connecticut. Id., 94. The trial court concluded that the father could not be held hable for the friend’s negligence in driving the car. Id. When our Supreme Court affirmed the judgment, it reasoned: “Before [the son], by permitting [the friend] to operate the car, could subject the owner, the [father], to liability, [the son] would have had to have general authority from his father to use the car for pleasure and convenience. . . . The court did not find that any such general authority was given. Indeed, it found that the car was entrusted by the [father] to his son for a specific and limited purpose . . . .” (Citations omitted; emphasis added.) Id., 95.

In the present case, the defendant’s son made the decision to delegate the responsibility of driving in New York to his friend, Desrosiers. The stated reason for this decision was his fear of the possibility of being stopped by the police and being arrested because of an outstanding ticket that he currently was contesting in New York. Unlike the father in Costanzo, the defendant in the present case did not give his son specific limiting instructions with regard to use of the car. In light of our Supreme Court’s reasoning in Costanzo, the defendant in the present case may be subjected to liability for Desrosiers’ negligence in driving the car because, as the trial court expressly found in its memorandum of decision, the defendant’s son had general authority to use the car for his own pleasure and convenience. As previously noted, when the court’s findings are supported by the record, it is not our role to duplicate its weighing process. Accordingly, the court’s findings were not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       The granting or denial of a prejudgment remedy is deemed a final judgment for the purposes of appeal. General Statutes § 52-2781 (a).

       The plaintiffs application for a prejudgment remedy also named as a defendant Philippe Desrosiers and refers to him as the operator of the motor vehicle. The record indicates, however, that the operator of the motor vehicle was Max Desrosiers, not Philippe. Additionally, the defendant’s brief states that the plaintiff did not pursue the application as to Philippe Desrosiers and that the current issues on appeal do not involve Philippe Desrosiers. We therefore refer in this opinion to Gesner Bernadel as the defendant.

       General Statutes § 52-182 provides in relevant part: “Proof that the operator of a motor vehicle . . . was the husband, wife, father, mother, son or daughter of the owner shall raise a presumption that such motor vehicle . . . was being operated as a family car . . . within the scope of a general authority from the owner, and shall impose upon the defendant the burden of rebutting such presumption.”

       The court’s initial memorandum of decision, dated November 3, 2005, was revised due to a scrivener’s error.

       "The court also found that General Statutes § 52-183 was inapplicable to this case. Section 52-183 provides in relevant part: “In any civil action brought against the owner of a motor vehicle to recover damages for the negligent or reckless operation of the motor vehicle, the operator, if he is other than the owner of the motor vehicle, shall be presumed to be the agent and servant of the owner of the motor vehicle and operating it in the course of his employment. The defendant shall have the burden of rebutting the presumption.”

       At this hearing, the son later testified that the defendant cosigned the loan for the car because he did not have sufficient credit worthiness to purchase the car.

       It is well settled that “[a]n appellate court cannot find facts or draw conclusions from primary facts found, but may only review such findings to see whether they might be legally, logically and reasonably found. . . . The duty of providing us with a record adequate to review claims, including those of a factual nature, rests with the appellant.” (Citation omitted; internal quotation marks omitted.) Gerber & Hurley, Inc. v. CCC Corp., 36 Conn. App. 539, 543, 651 A.2d 1302 (1995).


source: Caselaw Access Project

author: McLACHLAN, J.

license: Public Domain

text:
    BARBARA WALDMAN v. H. JEFFREY BECK
    (AC 27666)
    McLachlan, Harper and Stoughton, Js.
    Argued March 14
    officially released June 12, 2007

      H. Jeffrey Beck, pro se, the appellant (defendant).

      John-Henry M. Steele, for the appellee (plaintiff).
   Opinion

McLACHLAN, J.

The sole issue in this appeal is whether the trial court properly rendered a judgment against the defendant, awarding the plaintiff $20,000, in order to enforce the terms of a settlement agreement, when the terms of the settlement agreement called for the plaintiff to release the defendant upon execution of a promissory note and did not contemplate a judgment against the defendant. The defendant claims that the court improperly rendered the judgment because the only issue before the court was whether to grant the plaintiffs motion to enforce the settlement agreement. We reverse, in part, the judgment of the trial court.

The relevant facts are undisputed. The defendant, H. Jeffrey Beck, is an attorney who represented the plaintiff, Barbara Waldman, in a personal injury matter. The defendant failed to appear in court on behalf of his client on more than one occasion, and as a result, the court rendered a judgment dismissing that action. The defendant attempted unsuccessfully to revive the lawsuit on behalf of the plaintiff in subsequent actions. See Waldman v. Jayaraj, 89 Conn. App. 709, 712, 874 A.2d 860 (summary judgment properly granted in action brought pursuant to General Statutes § 52-592, accidental failure of suit statute, because action not timely filed), cert. denied, 275 Conn. 907, 882 A.2d 680 (2005).

By complaint dated April 12, 2004, the plaintiff initiated the present matter, alleging legal malpractice on the basis of the defendant’s negligence in the underlying actions. On February 15, 2006, the plaintiff filed a motion to enforce a settlement agreement reached between the parties. In that motion, the plaintiff alleged that at a February 8, 2005 pretrial conference, the parties had reached an agreement to settle the matter, whereby the defendant agreed to execute a promissory note paying to the plaintiff the amount of $20,000 within a ninety day period. The plaintiff attached as an exhibit an unsigned copy of the agreed upon promissory note, as well as an unsigned copy of a general release in which the plaintiff agreed that the defendant would be discharged from liability. The plaintiff further alleged that the parties had agreed subsequently to a slight modification of the terms of the agreement with respect to costs and late fees related to the note on February 9, 2005. The following day, the defendant sent another communication, however, indicating that he no longer agreed to pay $20,000 pursuant to the terms of the settlement agreement.

The matter came before the court for a hearing on the plaintiffs motion on March 20, 2006. At that time, the plaintiff requested that the court grant her motion to enforce the settlement agreement. The defendant did not dispute the terms of the proposed settlement agreement but argued that the agreement was unenforceable because his February 9, 2005 communication constituted a mere counteroffer that he had withdrawn effectively on February 10, 2005. At the conclusion of the hearing, the following colloquy occurred:

“The Court: Why don’t we do this. Why don’t I enter judgment against [the defendant] in the amount of $20,000, stay the execution of that judgment for ninety days, and that will be the case.

“[The Plaintiffs Counsel]: Upon the settlement agreement, Your Honor?

“The Court: Yes.

“[The Plaintiffs Counsel]: Very good. That’s acceptable to us.

“The Corut: Judgment may enter in the amount of $20,000 under [Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., 225 Conn. 804, 626 A.2d 729 (1993)] against [the defendant]. Judgment will be stayed for ninety days, and then if the judgment is not paid, the $20,000 is not paid . . . the plaintiff can execute on that judgment.”

The court then rendered a written judgment granting the plaintiffs motion and entering an award in the amount of $20,000, under the terms stated in its oral decision. On April 7, 2006, the defendant filed a motion to reargue the decision. The court denied the defendant’s motion to reargue on April 24,2006, but indicated that the defendant could seek to open and to vacate the judgment if the settlement was effected. This appeal followed.

On appeal, the defendant claims that the only matter before the court was the plaintiffs motion to have the court enforce the settlement agreement. The defendant argues that pursuant to the terms of the settlement agreement, the malpractice action would have been withdrawn upon his compliance with the agreement and that no judgment would enter against him. Thus, the defendant argues that the court’s sua sponte decision to render a judgment against him went beyond the scope of what was before the court. The plaintiff argues that under Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., supra, 225 Conn. 811, the court had the authority to render the judgment and, therefore, its sua sponte determination was proper.

In determining whether the court went beyond the scope of the settlement agreement in rendering a judgment award against the defendant, we review the court’s decision for an abuse of discretion. See Aquar-ion Water Co. of Connecticut v. Beck Law Products & Forms, LLC, 98 Conn. App. 234, 242, 907 A.2d 1274 (2006). A trial court has the inherent power summarily to enforce a settlement agreement as a matter of law when the terms of the settlement are clear and unambiguous and not in dispute. Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., supra, 225 Conn. 811. Where the terms of an undisputed settlement agreement have been reported on the record during the course of a significant courtroom proceeding, it is especially clear that the court has the authority to enforce a settlement “by entry of judgment in the underlying action . . . .” (Internal quotation marks omitted.) Id.

Nevertheless, the court’s authority in such a circumstance is limited to enforcing the undisputed terms of the settlement agreement that are clearly and unambiguously before it, and the court has no discretion to impose terms that conflict with the agreement. See Janus Films, Inc. v. Miller, 801 F.2d 578, 582 (2d Cir. 1986) (“[i]n determining the details of relief, the judge may not award whatever relief would have been appropriate after an adjudication on the merits, but only those precise forms of relief that are either agreed to by the parties ... or fairly implied by their agreement” [citations omitted]). Here, the plaintiff does not dispute that the terms of the settlement agreement called for her execution of a general release that would effectively discharge the defendant’s liability in the underlying matter. Thus, the court’s judgment award against the defendant was directly at odds with the terms of the settlement agreement, which, in effect, required that no such judgment would enter against the defendant upon execution of the promissory note. Accordingly, we conclude that the court improperly exercised its discretion by rendering sua sponte a judgment that contradicted the terms of the settlement agreement, which the court had the power to enforce.

The judgment in favor of the plaintiff is reversed. The court’s order granting the plaintiffs motion to enforce the settlement agreement is affirmed.

In this opinion the other judges concurred.

       At the oral argument before this court, the defendant, H. Jeffrey Beck, abandoned his claim on appeal that the trial court did not have the authority to enforce the settlement agreement on the ground that the terms of the agreement were not clear and unambiguous. The defendant, conceding that the terms of the agreement were clear and unambiguous, requested that this court vacate the judgment rendered by the trial court and remand the matter with direction to enforce the terms of the settlement agreement. On March 20,2007, the plaintiff, Barbara Waldman, filed a postargument motion for judgment seeking that, in light of the defendant’s concessions, this court render a judgment award in her favor or, in the alternative, remand the matter. Consistent with this opinion, the plaintiff’s March 20, 2007 motion is denied.

       The plaintiff attached as an exhibit, copies of faxed communications between the defendant and her counsel. As set forth in that exhibit, after the defendant indicated that he would not agree to pay fees and costs to pay collection, the plaintiffs counsel sent a follow-up communication requesting that the defendant confirm that this was the last change that the defendant requested. The defendant responded: “No other changes thanks J. Beck.”


author: HARPER, J.

text:
    MICHAEL W. WINSOR v. COMMISSIONER OF MOTOR VEHICLES
    (AC 27750)
    McLachlan, Harper and Rogers, Js.

      Argued February 16
    officially released June 12, 2007

      Eileen Meskill, assistant attorney general, with whom were Nancy E. Arnold, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, for the appellee (defendant).

      Robert J. Williams, Jr., for the appellee (plaintiff).
   Opinion

HARPER, J.

Connecticut’s implied consent law, General Statutes § 14-227b, directs police officers to prepare a written report whenever a person refuses to submit to a blood, breath or urine analysis. The statute further mandates that “a third person who witnessed such refusal” endorse the report on the incident. The issue in this appeal is whether a third party may “witness” such a refusal by observing it contemporaneously on closed circuit television.* The defendant, the commissioner of motor vehicles (commissioner), suspended the license of the plaintiff, Michael W. Winsor, after finding that he refused to submit to a breath test to determine his blood alcohol content. The trial court sustained the plaintiffs administrative appeal of the suspension on the basis of its conclusion that his refusal was not witnessed in accordance with § 14-227b (c). We affirm the judgment of the trial court.

The relevant facts underlying the commissioner’s appeal are not in dispute. On the night of October 19, 2005, the plaintiff was arrested in Suffield on suspicion of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a. After transporting the plaintiff to the Suffield police station, the arresting officer asked the plaintiff to submit to a breath test to determine his blood alcohol content. According to the arresting officer, the plaintiff refused to take any such test. Although the arresting officer was alone in the room with the plaintiff at the time that he allegedly refused to take the breath test, Stacey E. Robins, a police dispatcher, also observed the plaintiffs conduct via closed circuit television.

Pursuant to § 14-227b (c), the arresting officer completed an A-44 form detailing the circumstances surrounding the plaintiffs refusal to take the breath test. Robins, acting as the statutorily required “witness to [the] refusal,” also signed the A-44 form. By affixing her signature, Robins affirmed under oath that the plaintiff “refused to submit to such test or analysis when requested to do so” and that his refusal “occurred in [her] presence.” In accordance with § 14-227b (c), the report was sent to the department of motor vehicles (department). Less than one week later, the department notified the plaintiff that it was suspending his license due to his refusal to submit to a breath test.

On November 14,2005, an administrative hearing was held concerning the suspension of the plaintiffs license for refusing to submit to a breath test. During the hearing, the plaintiff called Robins to testify about her statements in the A-44 form. Robins testified that on October 19, 2005, she was stationed at her console all night because there were no other dispatchers on duty to relieve her. Although she was not physically present in the room with the arresting officer and the plaintiff, Robins confirmed that she had “witnessed” the plaintiff refuse to submit to a breath test via closed circuit television. Further, Robins stated that she had tested the video camera on the day in question to determine whether it was functioning properly.

Following Robins’ testimony, the plaintiff objected to the admission of the A-44 form on the ground that Robins did not “witness” the plaintiff refuse to submit to a breath test within the meaning of § 14-227b (c). The hearing officer, acting on behalf of the commissioner, overruled the objection and admitted the A-44 form. On the basis of the A-44 form and other documentation regarding the plaintiffs arrest, the hearing officer found, inter alia, that the plaintiff refused to take the breath test. He subsequently ordered a six month suspension of the plaintiffs license.

Pursuant to General Statutes § 4-183, the plaintiff appealed the decision to the court. At a hearing on May 1, 2006, the court sustained the plaintiffs appeal on the basis of its determination that the plaintiffs alleged refusal was not witnessed by a third person for purposes of § 14-227b (c). In a later articulation of its decision, the court quoted this court’s statement that § 14-227b (c) “requires, at a minimum, the presence of three persons, i.e., the person charged, the arresting officer and a third party witness . . . .” (Emphasis added.) Mailhot v. Commissioner of Motor Vehicles, 54 Conn. App. 62, 66, 733 A.2d 304 (1999). Relying on this language, the court concluded that Robins could not have witnessed the refusal as required by § 14-227b (c) because she was not “present” in the room. This appeal followed.

We begin by setting forth the standard applicable to our review of administrative decisions. “[Jjudicial review of the commissioner’s action is governed by the Uniform Administrative Procedure Act [(UAPA),Gen-eral Statutes §§ 4-166 through 4-189], and the scope of that review is very restricted. . . . [R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact. . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion.” (Citation omitted; internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561 (2000).

I

Section 14-227b-19 (a) of the Regulations of Connecticut State Agencies provides that the A-44 form “shall be admissible into evidence at the [suspension] hearing if it conforms to the requirements of subsection (c) of section 14-227b of the General Statutes.” Section 14-227b (c) provides in relevant part that the A-44 form “shall be endorsed by a third person who witnessed such refusal. . . .” Here, the hearing officer admitted the A-44 form into evidence despite the plaintiffs objection that it was not endorsed “by a third person who witnessed such refusal.” The first issue before this court, therefore, is whether the A-44 form complied with the witnessing requirement contained in § 14-227b (c).

As this question necessarily requires us to interpret the meaning of the word “witnessed” in § 14-227b (c), the issue is one of statutory construction over which we exercise plenary review. See In re William D., 97 Conn. App. 600, 605, 905 A.2d 696, cert. granted on other grounds, 280 Conn. 943, 912 A.2d 479 (2006). Furthermore, “[w]hen construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case .... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . .” (Internal quotation marks omitted.) In re William D., supra, 606.

Finally, “the legislature is always presumed to have created a harmonious and consistent body of law .... [T]his tenet of statutory construction . . . requires [this court] to read statutes together when they relate to the same subject matter .... Accordingly, [i]n determining the meaning of a statute ... we look not only at the provision at issue, but also to the broader statutory scheme to ensure the coherency of our construction.” (Internal quotation marks omitted.) Renaissance Management Co. v. Connecticut Housing Finance Authority, 281 Conn. 227, 238-39, 915 A.2d 290 (2007).

In accordance with these established principles of statutory interpretation, we first examine § 14-227b (c) for any indication as to the meaning of the word “witnessed.” In context, that portion of § 14-227b (c) provides that “[i]f the person arrested refuses to submit to such test or analysis . . . [t]he police officer shall prepare a written report of the incident and shall mail the report ... to the [department .... The report shall be made on a form approved by the [c]ommis-sioner . . . and shall be subscribed and sworn to . . . by the arresting officer. If the person arrested refused to submit to such test or analysis, the report shall be endorsed by a third person who witnessed such refusal. ...”

Upon review of the statutory language, we agree with the parties that the meaning of the word “witnessed” is unclear as applied to this situation. One could reasonably argue that “witnessing” merely signifies contemporaneous visual observation of an event, including indirect observation through the use of mechanical devices such as a television or a camera. Alternatively, it would be equally reasonable to conclude that “witnessing” an event requires the utilization of other sensory aspects besides vision and, therefore, requires physical presence in the room.

Our conclusion that the word “witnessed” is ambiguous necessitates a further inquiry outside the confines of the statutory language. In the absence of a statutory definition, “it is appropriate to look to the common understanding of the term as expressed in a dictionary.” (Internal quotation marks omitted.) State v. Boyd, 272 Conn. 72, 79 n.5, 861 A.2d 1155 (2004). “Witness” is defined by Black’s Law Dictionary (5th Ed. 1979) as meaning: “In general, one who, being present, personally sees or perceives a thing; a beholder, spectator, or eyewitness. One who testifies to what he has seen, heard, or otherwise observed.”

The commissioner claims that we should apply the second part of the definition, which does not require physical presence and would thereby permit a person to “witness” an act via closed circuit television. Two considerations, however, convince us that such a broad interpretation of the word “witnessed” must be rejected. First, we are unaware of any other circumstance in which a person who is required by statute to “witness” an act has been permitted to fulfill that obligation by observing contemporaneously via closed circuit television. The absence of any such precedent is significant given the existence of several statutory provisions that mandate that specific acts be “witnessed.” See, e.g., General Statutes § 9-248 (secretary of state must give municipal officials “one certifícate on which can be certified that party watchers have witnessed the testing and preparing of the [voting] machines”); General Statutes § 19a-286 (c) (commissioner of public health must develop minimum standards for autopsy consent form, including requirement of “documented and witnessed consent”); General Statutes § 22-415Í (euthanizing of equine that tested positive for equine infectious anemia “shall be witnessed by the state veterinarian or his agent”); General Statutes § 46b-22 (a) (marriages “witnessed by a duly constituted Spiritual Assembly of the Baha’is” are valid).

Second, inteipreting the word “witnessed” so as to not require physical presence would contravene the reason for insisting on a third party witness to the refusal. As this court has noted previously, by creating the witnessing requirement, the legislature sought to avoid a “ ‘my word against yours’ ” situation. Mailhot v. Commissioner of Motor Vehicles, supra, 54 Conn. App. 66. Conflicting accounts arise, in part, because of the difficulties inherent in ascertaining when a person is “refusing” to submit to the breath test. “Refusal” is difficult to measure objectively because it is broadly defined as occurring whenever a person “remains silent or does not otherwise communicate his assent after being requested to take a blood, breath or urine test under circumstances where a response may reasonably be expected.” Regs., Conn. State Agencies § 14-227b-5.

Because a “refusal” can be accomplished verbally, as well as through conduct; Tompkins v. Commissioner of Motor Vehicles, 60 Conn. App. 830, 832, 761 A.2d 786 (2000); a third party must, at a minimum, be able to fully see and hear the person in order to reasonably determine whether he or she is “refusing” a breath test. Yet, this obvious need for complete visual and audio monitoring of the person strongly militates against interpreting the word “witnessed” so as to include observation via closed circuit television. When a person is observing via closed circuit television, he or she is completely reliant on the image (and perhaps sound) supplied by the camera in the other room. As a consequence, there is no guarantee that he or she will be able to see and hear fully what is happening. Although it is possible to imagine the perfect scenario—the closed circuit television system has audio capabilities, and the third party is able to adjust the angle of the camera to ensure that the conduct constituting a “refusal” occurs directly in front of the lens—there is no evidence to suggest that this would occur in all circumstances. Indeed, the record here does not indicate whether the closed circuit television supplied sound or whether the plaintiff was facing the camera and fully visible to Robins at the time of his alleged refusal.

Because of the numerous variables affecting one’s ability to observe an act over closed circuit television, there would always be a substantial danger that the third party would be unable to hear or even see the person at the moment of refusal. Accordingly, allowing a third party to “witness” the refusal over closed circuit television would be clearly inadequate to fulfill the legislative directive that a third party verily that a “refusal,” in fact, occurred.

The trial court concluded that physical presence was required due to this court’s utilization of the word “presence” in describing the circumstances under which other refusals have been “witnessed” properly under the statute. Specifically, in Mailhot v. Commissioner of Motor Vehicles, supra, 54 Conn. App. 62, this court held that “§ 14-227b (c), where there is a refusal to take the test by a party arrested, requires, at a minimum, the presence of three persons, i.e., the person charged, the arresting officer and a third party witness, who may or may not be the same person who took the arresting officer’s oath.” (Emphasis added.) Id., 66. Later, in Lomen v. Commissioner of Motor Vehicles, 61 Conn. App. 213, 763 A.2d 676 (2000), we relied on Mailhot and concluded that an A-44 form was witnessed properly because “three people were present during the testing . . . .” (Emphasis added.) Id., 217.

Both of those cases involved the total number of people needed to satisfy the witnessing requirement rather than their spatial proximity at the time of the refusal. Nevertheless, our repeated, albeit passing, references to a third party’s “presence” strongly indicates that “witnessing” has been, and should be, understood to mean physical attendance in the room. Stated differently, we find those cases instructive insofar as they suggest the most natural meaning of the word “witnessed.”

Moreover, as the plaintiff asserts in his brief, this court has not been alone in using words connoting presence when discussing the witnessing requirement. The A-44 form itself requires the third party who witnessed the refusal to affirm under oath that it “occurred in [his or her] presence.” Furthermore, Senator Clifton A. Leonhardt, who was one of the primary advocates of the bill that added this portion of the statute, described the witnessing requirement as meaning the following: “If there’s a refusal the police officer has to say so under oath. It has to be in front o/a third party so it’s not something the police officer is making up . . . .” (Emphasis added.) 24 S. Proc., Pt. 18,1981 Sess., p. 5673. Being “in front of’ someone usually connotes physical presence. It certainly cannot mean observation via closed circuit television, at least under circumstances in which there is no assurance that either the arresting officer or the person will be facing the camera.

The commissioner argues in his brief that “[a] reasonable and plausible description of [Robins’] observance of [the] plaintiffs refusal was that she was constructively present by viewing it live, via closed circuit television.” Even if we assume for the sake of argument that “constructive presence” could potentially fulfill the witnessing requirement, there is no factual basis in this record to support such a conclusion. Robins did not describe the circumstances attendant to her observation of the plaintiff and the arresting officer. Counsel for the plaintiff merely asked Robins whether she “witnessed] the refusal via video camera,” and she responded affirmatively. The record in this case does not reveal whether the plaintiff was facing the camera at the time of his alleged refusal to take the test. There are also no details concerning the placement of the camera in the room and the resulting scope of visual coverage. Moreover, there is no indication as to whether the closed circuit television system had audio, as well as visual, capabilities or whether the image supplied thereby was in color or black and white. In the absence of these critical facts, it cannot be reasonably asserted that Robins was “constructively present” in the room with the plaintiff and arresting officer.

On the basis of all of these considerations, we hold that watching the plaintiffs alleged refusal via closed circuit television did not constitute “witness [ing] such refusal” within the meaning of § 14-227b (c). Accordingly, we turn to the question of whether the hearing officer’s admission of the A-44 form into evidence was nonetheless proper. “Administrative tribunals are not strictly bound by the rules of evidence ... so long as the evidence is reliable and probative.” (Internal quotation marks omitted.) Roy v. Commissioner of Motor Vehicles, 67 Conn. App. 394, 397, 786 A.2d 1279 (2001). Furthermore, “[t]he plaintiff bears the burden of demonstrating that a hearing officer’s evidentiary ruling is arbitrary, illegal or an abuse of discretion.” (Internal quotation marks omitted.) Id.

“Compliance with § 14-227b (c) is designed to provide sufficient indicia of reliability so that the report can be introduced in evidence as an exception to the hearsay rule, especially in license suspension proceedings, without the necessity of producing the arresting officer. ... If the report [does] not include such indicia of reliability, the report [is not] admissible even before an administrative tribunal of this type.” (Citation omitted; internal quotation marks omitted.) Bialowas v. Commissioner of Motor Vehicles, 44 Conn. App. 702, 712, 692 A.2d 834 (1997). Because § 14-227b (c) is tailored to satisfy an exception to the hearsay rule, a failure to comply with the witnessing requirement renders the A-44 form inadmissible, at least in the absence of direct testimony from the arresting officer. See Volck v. Muzio, 204 Conn. 507, 518, 529 A.2d 177 (1987); Regs., Conn. State Agencies § 14-227b-19 (a).

Here, the arresting officer did not testify at the license suspension hearing, and the witnessing requirement of § 14-227b (c) was not satisfied. As a result, the A-44 form should not have been admitted at the suspension hearing.

II

The inquiry cannot end, however, with our conclusion that the A-44 form was not properly witnessed and was consequently inadmissible at the license suspension hearing. Even in the absence of the A-44 form, “[i]f the administrative record provides substantial evidence upon which the hearing officer could reasonably have based his finding . . . the decision must be upheld.” (Internal quotation marks omitted.) Bialowas v. Commissioner of Motor Vehicles, supra, 44 Conn. App. 709. As such, there is still the question of whether the remainder of the record supplies reliable, probative and substantial evidence to support the hearing officer’s decision to suspend the plaintiffs license. We conclude that it does not.

“Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . The evidence must be substantial enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. . . . The obvious corollary to the substantial evidence rule is that a court may not affirm a decision if the evidence in the record does not support it.” (Citations omitted; internal quotation marks omitted.) Id.

After excluding the A-44 form, only three evidentiary sources remain in the record to support the hearing officer’s finding that the plaintiff refused to submit to the breath test: (1) the printout from the Intoxilyzer that reads “test refused,” (2) Robins’ testimony at the hearing that she “witnessed” the plaintiff refuse the test via closed circuit television and (3) the arresting officer’s statements in his narrative supplement to the arrest report that “[t]he implied consent advisory form was explained to the [plaintiff]” and “[t]he [plaintiff] refused to take the breath test.”

Although all of these three sources of evidence indicate that the plaintiff refused to submit to the breath test, none provide any information about the circumstances supporting that conclusion. Neither the arresting officer nor Robins described what behavior on the part of the plaintiff led them to infer that he was refusing the breath test. Without any facts or details to buttress that inference, we have no basis on which to conclude that substantial evidence supports the hearing officer’s determination.

In that regard, this case is analogous to Bialowas v. Commissioner of Motor Vehicles, supra, 44 Conn. App. 702, in which this court was confronted with a desolate record consisting of only: (1) the police report’s statements that the first intoximeter test was “aborted” and that the motorist’s “refusal” was witnessed by a second officer, (2) the intoximeter result tape that read “insuff. breath” and (3) the arresting officer’s notation in his narrative supplement that the motorist “was very uncooperative and would not sign any necessary papers.” (Internal quotation marks omitted.) Id., 715. Upon close examination of the statements contained in the narrative supplement, we observed that it was unclear exactly what the arresting officer was referring to in his statement that the motorist was “very uncooperative.” (Internal quotation marks omitted.) Id., 716. We noted further that “ [t]he police officer’s opinion that the plaintiff did not blow forcefully enough into the machine ... is only a conclusion without any underlying, stated factual basis in the record.” (Emphasis in original; internal quotation marks omitted.) Id. As a consequence, even when coupled with the intoximeter tape and the statements in the police report, this court was forced to conclude that substantial evidence did not exist in the record to support a finding of refusal. Id., 717.

In this case, as in Bialowas, the blanket assertions of refusal by the arresting officer and Robins are mere conclusions without any underlying, stated factual basis in the record. See id., 716. As such, notwithstanding “our endeavor to rid our roads of [drunken] drivers”; (internal quotation marks omitted) id., 718; we conclude that the evidence remaining in this record does not support the determination of the hearing officer that the plaintiff “refused” to submit to the breath test in violation of § 14-227b. We therefore affirm the judgment of the trial court.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-227b provides in relevant part: “(a) Any person who operates a motor vehicle in this state shall be deemed to have given such person’s consent to a chemical analysis of such person’s blood, breath or urine ....
      “(b) If any such person, having been placed under arrest for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both, and thereafter, after being apprised of such person’s constitutional rights, having been requested to submit to a blood, breath or urine test at the option of the police officer, having been afforded a reasonable opportunity to telephone an attorney prior to the performance of such test and having been informed that such person’s license . . . may be suspended in accordance with the provisions of this section if such person refuses to submit to such test . . . and that evidence of any such refusal shall be admissible in accordance with subsection (e) of section 14-227a and may be used against such person in any criminal prosecution, refuses to submit to the designated test, the test shall not be given .... The police officer shall make a notation upon the records of the police department that such officer informed the person that such person’s license . . . may be suspended if such person refused to submit to such test ....
      “(c) If the person arrested refuses to submit to such test or analysis . . . the police officer, acting on behalf of the Commissioner of Motor Vehicles, shall immediately revoke and take possession of the motor vehicle operator’s license . . . for a twenty-four hour period. The police officer shall prepare a written report of the incident and shall mail the report and a copy of the results of any chemical test or analysis to the Department of Motor Vehicles within three business days. The report shall be made on a form approved by the Commissioner of Motor Vehicles and shall be subscribed and sworn to under penalty of false statement ... by the arresting officer. If the person arrested refused to submit to such test or analysis, the report shall be endorsed by a third person who witnessed such refusal. The report shall set forth the grounds for the officer’s belief that there was probable cause to arrest such person for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both and shall state that such person had refused to submit to such test or analysis when requested by such police officer to do so . . . .”

        Subsection (e) (1) allows a motorist to request a hearing before the commissioner concerning the suspension of his or her license. Subsection (i) authorizes the commissioner to order a six month suspension of the motor vehicle operator’s license of any person who refuses to submit to a breath or urine test.

       Closed circuit television uses one or more video cameras to transmit a magnified image onto a limited number of television monitors in another location.

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

       “The A-44 form is used by the police to report an arrest related to operating a motor vehicle under the influence and the results of any sobriety tests administered or the refusal to submit to such tests.” Roy v. Commissioner of Motor Vehicles, 67 Conn. App. 394, 396 n.3, 786 A.2d 1279 (2001).

       Curiously, although Robins stated that she “tested” the video camera, she did not state the results of her test.

       The evidence before the administrative hearing officer included the A-44 form, the results of the plaintiffs breath test indicating “test refused,” the plaintiffs booking report, arrest report and accompanying narrative by the arresting officer, the notice of suspension and the plaintiffs birth certificate.

       General Statutes § 4-183 (a) provides in relevant part: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section. . .

       General Statutes § l-2z provides: “The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.”

       Notably, in advocating for the passage of the bill that created this portion of General Statutes § 14-227a (c), Senator Clifton A. Leonhardt stated, inter alia: “Some people have raised the question does this Bill go too far? Is it a little too stringent? And I would like to go through some of the protections that are built into the Bill. ... In line 113 of the Bill, it provides for two different tests to be given. If there’s a refusal the police officer has to say so under oath. It has to be in front of a third party so it’s not something the police officer is making up on his own and then very importantly, the Bill makes provision for an immediate post suspension hearing, in [line] 275 so that the Constitutional due process rights of drivers are protected.” 24 S. Proc., Pt. 18, 1981 Sess., pp. 5672-73.

       As we have explained, our holding is predicated on the common understanding of the word “witnessed,” as well as the most logical interpretation of the word in light of its statutory purpose. The legislature is, of course, free to amend General Statutes § 14-227b (c) so as to expressly permit a third party to “witness” a refusal by closed circuit television or some other means.

       The commissioner also claims that Robins’ lack of physical presence in the room was immaterial if the plaintiff was afforded all of the procedural and substantive process that he was due under the circumstances. This argument is misplaced, however, because relying improperly on an inadmissible report to suspend aperson’s license necessarily constitutes aviolation of due process.


author: FLYNN, C. J.

text:
    FREDERICK VITALE, ADMINISTRATOR (ESTATE OF TREVOR B. VITALE), ET AL. v. STEVEN KOWAL ET AL.
    (AC 27469)
    Flynn, C. J., and Schaller and Gruendel, Js.
    Argued March 12
    officially released June 12, 2007

      Norman J. Voog, for the appellants (plaintiffs).

      John M. Rowan, for the appellee (defendant Kevin Gonzalez).
   Opinion

FLYNN, C. J.

The plaintiff, Frederick Vitale, on his own behalf and as administrator of the estate of Trevor Vitale, his deceased son, appeals from the summary judgment rendered by the trial court in favor of the defendant Kevin Gonzalez in this action for monetary damages, which the plaintiff claims were incurred as a result of Trevor Vitale’s losing control of and crashing his automobile, tragically resulting in his death, after allegedly consuming alcohol with the defendant and Steven Kowal. The claims against the defendant sound in negligence and recklessness. On appeal, the plaintiff claims that the court improperly rendered summary judgment in favor of the defendant after concluding that the defendant owed no legal duty to Trevor Vitale. We affirm the judgment of the trial court.

The trial court, viewing the evidence submitted in the light most favorable to the defendant, set forth the following facts. “The [plaintiffs] claim for damages arises out of an automobile accident which . . . occurred in the early morning hours, on September 5, 2000, on Interstate Route 84 in Southington. On that date, the plaintiffs decedent, Trevor Vitale, while intoxicated, allegedly lost control of the automobile he was operating, ran off the highway, crashed and was killed. The accident occurred a short time after Trevor Vitale, who was nineteen years old, and . . . Steven Kowal and the defendant had been drinking beer in a dormitory room at Central Connecticut State University (Central).”

The court further found: “Steven Kowal, age nineteen, and Trevor Vitale, age nineteen, were close Mends, having attended and graduated from high school together. [The defendant], age twenty, was also a Mend of Trevor Vitale and Steven Kowal. Steven Kowal and [the defendant] were to be roommates at Central for the year commencing in September, 2000. [The defendant], who was a freshman, had moved into the room before Steven Kowal. On September 4, 2000, during the afternoon, Steven Kowal arrived at the room with his father, Michael Kowal. The Kowals moved Steven Kowal’s belongings into the room. One of the items was a small refrigerator owned by Steven Kowal. There was no alcohol in the room at that time. Michael Kowal left the room in the late afternoon and did not return. Shortly after his father left, Steven Kowal went down to his car and removed a thirty can package of beer from the trunk, which beer he had purchased previously. Michael Kowal did not know that Steven Kowal had the beer in his trunk. Steven Kowal then carried the beer up to his room and put it in his refrigerator. Steven Kowal and [the defendant] began to drink the beer that was in the refrigerator. Trevor Vitale, having been invited previously by Steven Kowal, arrived at the room during the evening. [The defendant] did not invite Trevor Vitale to the room, nor did he know that Steven Kowal had invited him. Thereafter, all three drank the beer that was in the refrigerator. Steven Kowal and [the defendant] did not assist Trevor Vitale in removing any beer from the refrigerator and did not physically hand over any beer to Trevor Vitale. When any one of the three wished to have another beer, he would get up and remove it from the refrigerator. The only beer in the room was the beer purchased by Steven Kowal. Central had a rule prohibiting alcohol from being in the dormitory where Steven Kowal and [the defendant] were living. Trevor Vitale became intoxicated as a result of drinking the beer that was in the refrigerator. Trevor Vitale left the room close to midnight and, while driving his car on Interstate Route 84, ran off the road as a result of his intoxication and was killed.”

In considering the merits of the motion for summary judgment filed by the defendant, the court held: “[T]he evidence before the court is that [the defendant] did not invite Trevor Vitale to the room and did not know that Steven Kowal had invited him, that he did not own the beer or the refrigerator, that he did not purchase or bring any alcohol into the dormitoiy room, that he did not put the beer in the refrigerator, that he did not serve or give any beer to Trevor Vitale, and there is no evidence that he actively encouraged Trevor Vitale to drink the beer. [The defendant] was not the social host on that occasion. Under the facts presented, [the defendant] owed no legal duty, as claimed by the plaintiff in the fifth and sixth counts, to Trevor Vitale, and cannot be held liable for the damages claimed in the revised complaint.” On this basis, the court granted the defendant’s motion for summary judgment. This appeal followed.

On appeal, the plaintiff claims that the court improperly granted the motion for summary judgment after concluding that the defendant owed no legal duty to Trevor Vitale. The plaintiff argues that there were issues of material fact in dispute and that this case was inappropriate for summary judgment. He argues that although the court found that the plaintiff had provided no evidence to support a conclusion that the defendant had provided any alcohol to the decedent, such a factual determination should have been left for the jury. Additionally, as to the court’s determination that the defendant owed no legal duty to the decedent, the plaintiff argues that, even if the defendant did not provide alcohol to Trevor Vitale, because the dormitory room, at least in part, was under the control of the defendant and the defendant actively participated in the evening events, he did owe a legal duty to the decedent as a social host. We conclude that, on the basis of the state of the law as it existed in 2000, the trial court properly rendered summary judgment in favor of the defendant.

“The law governing summary judgment and the accompanying standard of review are well settled. Practice Book § [17-49] requires that judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A material fact is a fact that will make a difference in the result of the case. . . . The facts at issue are those alleged in the pleadings. . . .

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden, the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent. . . .

“It is frequently stated in Connecticut’s case law that, pursuant to Practice Book §§ 17-45 and 17-46, a party opposing a summary judgment motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. . . . [T]ypically, [demonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred. . . . Moreover, [t]o establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue. . . . Such assertions are insufficient regardless of whether they are contained in a complaint or a brief. . . . Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact. . . .

“An important exception exists, however, to the general rule that a party opposing summary judgment must provide evidentiary support for its opposition, and that exception has been articulated in our jurisprudence with less frequency than has the general rule. On a motion by [the] defendant for summary judgment, the burden is on [the] defendant to negate each claim as framed by the complaint .... It necessarily follows that it is only [o]nce [the] defendant’s burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial. . . . Accordingly, [w]hen documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue.” (Citations omitted; internal quotation marks omitted.) Rockwell v. Quintner, 96 Conn. App. 221, 227-30, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006). On appeal, our review of the court’s decision to grant a motion for summary judgment is plenary. Barry v. Quality Steel Products, Inc., 263 Conn. 424, 450, 820 A.2d 258 (2003).

The plaintiffs claims against the defendant sounded in negligence and recklessness. More specifically, the plaintiff alleged in count five of the complaint that the defendant negligently and carelessly provided alcohol and a safe place to consume alcohol to Trevor Vitale, which ultimately resulted in his untimely death after he lost control of his automobile. In count six, the plaintiff alleged that the defendant provided a safe place for Trevor Vitale to consume alcohol, participated in drinking activities with Trevor Vitale, encouraged his drinking and failed to restrict his consumption, which ultimately resulted in his untimely death. The plaintiff alleged that the defendant’s behavior was “deliberate, wanton and reckless” and that it was in violation of General Statutes (Rev. to 1999) § 30-86.

Unlike General Statutes § 30-102, our Dram Shop Act, the statutoiy prohibition against serving alcohol contained in § 30-86, which the plaintiff invokes, does not authorize a private cause of action for damages. Thus, the plaintiffs action is necessarily at common law. See Boehm v. Kish, 201 Conn. 385, 389, 517 A.2d 624 (1986). “Our Supreme Court has addressed the relationship between common-law negligence and this very statutory prohibition [found at § 30-86]. In Bohan v. Last, 236 Conn. 670, 680, 674 A.2d 839 (1996), the court held that, despite the statute, ‘the common law liability of purveyors of alcohol [is limited] to those who knew or had reason to know that they were making alcohol available to a minor.’ That holding was . . . reaffirmed in Craig v. Driscoll, 262 Conn. 312, 339, 813 A.2d 1003 (2003), which held that a person who provides alcohol to someone who should not have been served bears legal responsibility for ‘a reasonably foreseeable risk of injury’ arising out of the improper service.” (Emphasis added.) Hayes v. Caspers, Ltd., 90 Conn. App. 781, 787, 881 A.2d 428, cert. denied, 276 Conn. 915, 888 A.2d 84 (2005).

“To recover on a theory of negligence, the plaintiff must establish that the [defendant] owed a duty to [the injured person] and breached that duty. . . . The existence of a duty is a question of law. . . . Only if such a duty is found to exist does the trier of fact then determine whether the [defendant] violated that duty in the particular situation at hand.” (Citation omitted; internal quotation marks omitted.) Rangel v. Parkhurst, 64 Conn. App. 372, 378, 779 A.2d 1277 (2001).

“[A] count based on reckless and wanton misconduct must, like an action in negligence, allege some duty running from the defendant to the plaintiff.” Sheiman v. Lafayette Bank & Trust Co., 4 Conn. App. 39, 46, 492 A.2d 219 (1985). In order to establish that the conduct of a defendant, who was under such a duty, was deliberate, wanton and reckless, “the plaintiff must prove . . . the existence of a state of consciousness with reference to the consequences of one’s acts .... [Such conduct] is more than negligence, more than gross negligence. . . . [I]n order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them. ... It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action. ... [In sum, such] conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.” (Internal quotation marks omitted.) Elliott v. Waterbury, 245 Conn. 385, 415, 715 A.2d 27 (1998).

In his motion for summary judgment, the defendant argued that the plaintiff had not alleged nor could he provide any evidence to support the existence of a legal duty owed by the defendant to Trevor Vitale. In contrast, he further argued, he had submitted uncontroverted evidence that he had not given alcohol to Trevor Vitale, nor encouraged Trevor Vitale to consume alcohol, nor did he have any alcohol of his own in the dormitory room, nor had he invited Trevor Vitale to the dormitory room that evening. Accordingly, he argued, the plaintiff could not prove that he owed a duty to Trevor Vitale. The plaintiff argued, as he does on appeal, that this issue should have been left for the jury. The existence of a legal duty, however, is a question of law, and, in granting the motion for summary judgment, the court agreed with the defendant, finding that there was no evidence to support any other legal conclusion. We agree.

The plaintiffs position is that the defendant and Steven Kowal cannot be believed, and, therefore, the court should not have granted summary judgment because the plaintiff had alleged facts that were contrary to the testimony or affidavits of the defendant and Kowal. He argues that it is likely that the jury would have disbelieved the testimony of the defendant and Steven Kowal because of their lack of credibility. Even if this were true, however, it is axiomatic that the jury could not have found in favor of the plaintiff simply on the basis of the allegations contained in the complaint without evidence to support such allegations. The mere disbelief of some evidence or testimony does not prove the contrary to be true. See State v. Mayell, 163 Conn. 419, 426-27, 311 A.2d 60 (1972); State v. Smalls, 78 Conn. App. 535, 545, 827 A.2d 784, cert. denied, 266 Conn. 931, 837 A.2d 806 (2003); State v. Stewart, 77 Conn. App. 393, 400, 823 A.2d 392, cert. denied, 265 Conn. 906, 831 A.2d 253 (2003).

As our Supreme Court explained in State v. Mayell, supra, 163 Conn. 426-27, a case in which “[t]he state heavily relie [d] on the right of the jury to find the evidence offered by the defendant to be a fantastic and obviously concocted story which attempted to fabricate an alibi . . . [i]t is apparent that the jury could . . . find [the defendant’s evidence to be a fabrication, but] [e]ven assuming . . . that the jury rejected all of the evidence which the defendant offered, the jury would not have been entitled to make an affirmative finding to the contrary.” See also Burritt Mutual Savings Bank v. New Britain, 146 Conn. 669, 680, 154 A.2d 608 (1959) (“[t]he [trier], of course, was not required to give credence to the testimony of the defendant’s expert . . . [b]ut its failure to accept his testimony would furnish no support for a contrary finding”); Walkinshaw v. O’Brien, 130 Conn. 151, 153, 32 A.2d 639 (1943) (“trial court . . . fell into the error of finding certain facts because it disbelieved testimony that the opposite was true”).

In this case, the evidence offered in support of the defendant’s motion for summary judgment tended to prove that the defendant did not owe a duty to Trevor Vitale because the defendant had not invited Trevor Vitale to his dormitory room that evening, he did not know that Trevor Vitale had been invited to the dormitory room, he did not bring alcohol to the dormitory room that evening, he did not retrieve alcohol from the refrigerator for Trevor Vitale, and he did not provide or serve alcohol to Trevor Vitale that evening. The plaintiff offered no evidence to contradict the defendant’s evidence. Accordingly, even if we were to agree that it was likely that the jury would not have believed some or all of the evidence submitted by the defendant, the jury could not have found the opposite to be true simply on the basis of this disbelief.

The judgment is affirmed.

In this opinion the other judges concurred.

       Frederick Vitale brought this action individually and as administrator of the estate of his son. The term “plaintiff’ is used in this opinion to refer to him in both capacities.

       The complaint was brought in six counts. Counts one through four were brought against Steven Kowal and Michael Kowal. Counts five and six were brought against Gonzalez. In addition to rendering summary judgment in favor of Gonzalez, the court rendered summary judgment in favor of Michael Kowal on counts one and two but denied summary judgment on count three. Summary judgment was not requested on count four. It is unclear from the court’s memorandum of decision whether it rendered summary judgment in favor of Steven Kowal on count two. On page ten of the court’s memorandum of decision, the court stated that Steven Kowal’s motion for summary judgment was granted as to count two, but on page thirteen of that decision, the court stated that it was denying the motion in its entirety as to Steven Kowal. The court’s partial summary judgments as to Michael Kowal and Steven Kowal are not before us, however, in this appeal. Accordingly, in this opinion, we refer only to Gonzalez as the defendant.

       After several years of considering various bills related to this very issue, the legislature in 2006 passed Public Acts 2006, No. 06-112, § 1, which amended General Statutes § 30-89 as follows: “1. . . . (Effective October 1, 2006) (a) No person having possession of, or exercising dominion and control over, any dwelling unit or private property shall (1) knowingly permit any minor to possess alcoholic liquor in violation of subsection (b) of section 30-89 of the general statutes, as amended by this act, in such dwelling unit or on such private property, or (2) knowing that any minor possesses alcoholic liquor in violation of subsection (b) of section 30-89 of the general statutes, as amended by this act, in such dwelling unit or on such private property, fail to make reasonable efforts to halt such possession. For the purposes of this subsection, ‘minor’ means a person under twenty-one years of age.
      “(b) Any person who violates the provisions of subsection (a) of this section shall, for a first offense, have committed an infraction and, for any subsequent offense, be fined not more than five hundred dollars or imprisoned not more than one year, or both.”

       General Statutes (Rev. to 1999) § 30-86 provides in relevant part: “Any permittee who, by himself, his servant or agent, sells or delivers alcoholic liquor to any minor, or to any intoxicated person . . . shall be subject to the penalties of section 30-113. ...”
      General Statutes (Rev. to 1999) § 30-1 (12) defines “minor” as “any person under twenty-one years of age.”


author: DiPENTIMA, J.

text:
    STATE OF CONNECTICUT v. MICHAEL CYR
    (AC 27172)
    Flynn, C. J., and Schaller and DiPentima, Js.

      Argued February 13
    officially released June 12, 2007

      Steven A. Torneo, with whom, on the brief, was Lawrence W. Bates, Jr., for the appellant (defendant).

      Sarah Hanna, special deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Lisa Herskowitz, senior assistant state’s attorney, for the appellee (state).
   Opinion

DiPENTIMA, J.

The defendant, Michael Cyr, appeals from the judgment of conviction rendered following his conditional plea of nolo contendere to operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes (Rev. to 2005) § 14-227a. The plea followed the court’s denial of the defendant’s motion to dismiss. On appeal, the defendant claims that the court improperly denied his motion to dismiss because there was insufficient evidence that he was operating a motor vehicle within the meaning of the statute. We agree with the defendant and reverse the judgment of the trial court.

The parties submitted a joint stipulation of facts, which provides the sole factual record before us on review. The stipulation states that on February 28,2005, at approximately 2:20 a.m., the defendant started his car with his remote starter from outside the vehicle. The defendant opened the driver’s side door and sat in the driver’s seat while the motor was running. At no time while in the vehicle did the defendant put the keys in the ignition or make use of any mechanical or electrical agency. The defendant was arrested on a charge of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of § 14-227a.

The defendant appeared before the court on May 2, 2005, and entered a plea of not guilty. On June 23, 2005, the defendant filed a motion to dismiss the charge against him on the ground that he was not operating a motor vehicle as alleged, which was denied by the court, Cofield, J., on October 7, 2005. On September 27, 2005, the state filed a part B information charging the defendant as a third time offender under § 14-227a. On October 19, 2005, the court held a pretrial charging conference on the record, and both counsel gave their requests to charge the jury. The court granted the state’s request to charge and denied the defendant’s request. On October 24, 2005, the defendant filed a second motion to dismiss. On the same day, the parties filed a joint stipulation of facts, which included the fact that the defendant had started the car with a remote starter. On the basis of the stipulation of facts, the court denied the defendant’s second motion to dismiss, ruling that the jury should determine whether the defendant’s conduct constituted operation of a vehicle within the meaning of the statute. The parties and the court agreed that this ruling was dispositive of the case. The defendant entered a plea of nolo contendere pursuant to General Statutes § 54-94a and pleaded guilty to the part B information. He was sentenced by the court, Norko J., to three years incarceration, execution suspended after one year, three years probation and a $2000 fine.

I

We first dispose of the defendant’s claim that the court improperly adopted the state’s jury charge rather than the one he had requested. We will not review this claim because it does not fall within the narrow scope of § 54-94a, nor do the facts of this case establish good cause meriting exercise of our supervisory authority.

Under § 54-94a, a defendant may enter a plea of nolo contendere conditional on the right to appeal from a trial court’s denial of a motion to suppress or from a denial of a motion to dismiss. State v. Kelley, 206 Conn. 323, 334, 537 A.2d 483 (1988). “[I]n the absence of a showing of good cause, an appellate court should decline to review an issue that has not been raised in accordance with the provisions of § 54-94a.” State v. Revelo, 256 Conn. 494, 503, 775 A.2d 260, cert. denied, 534 U.S. 1052, 122 S. Ct. 639, 151 L. Ed. 2d 558 (2001). Such good cause is only infrequently established. Id.; State v. Lasaga, 269 Conn. 454, 479, 848 A.2d 1149 (2004) (“[our Supreme Court] has been reluctant to invoke its authority to review an issue raised in connection with a conditional plea of nolo contendere when . . . that issue does not fall within the narrow scope of § 54-94a” [internal quotation marks omitted]).

The defendant argues that the facts of this case warrant such an extraordinary remedy because a sentence based on the state’s representation of the law in its jury charge would constitute an ex post facto conviction in violation of his due process rights. We disagree.

We apply a three part test to determine whether a claim beyond the scope of § 54-94a warrants the exercise of this court’s supervisory powers: (1) whether the defendant’s claim gives rise to an important due process issue; (2) whether the undisputed facts of the case bear out the defendant’s claim of a constitutional violation; and (3) whether declining to review the defendant’s claim would permit a constitutionally suspect practice to continue or otherwise would permit the result to taint our judicial system. State v. Potter, 95 Conn. App. 89, 93, 894 A.2d 1063 (2006); see also State v. Revelo, supra, 256 Conn. 503-504.

After reviewing the record, we conclude that the defendant’s claim does not meet the Revelo test. The defendant does not assert that there was a procedural defect at the trial level that impaired his rights but, rather, he disputes the court’s legal conclusion. Moreover, the defendant’s requested jury charge had no practical effect because he never went to trial. See, e.g., State v. Potter, supra, 95 Conn. App. 94 (refusing to address defendant’s claim when it was not sole factor in trial court’s decision). We therefore decline to exercise our supervisory authority to address this claim.

II

We now turn to the defendant’s primary claim that the court improperly denied his motion to dismiss because the parties’ stipulation of facts reveals that he was not operating the motor vehicle within the meaning of § 14-227a.

“Our standard of review of a trial court’s . . . conclusions of law in connection with a motion to dismiss is well settled. . . . [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts .... Thus, our review of the trial court’s ultimate legal conclusion and resulting [denial] of the motion to dismiss will be de novo. ” (Internal quotation marks omitted.) State v. Payne, 100 Conn. App. 13, 19, 917 A.2d 43 (2007).

“Pursuant to General Statutes § 54-56, a court may, at any time, upon motion by the defendant, dismiss any information and order such defendant discharged if, in the opinion of the court, there is not sufficient evidence or cause to justify the bringing or continuing of such information or the placing of the person accused therein on trial. ... In determining whether the evidence proffered by the state is adequate to avoid dismissal, such proof must be viewed in the light most favorable to the state.” (Internal quotation marks omitted.) State v. Howell, 98 Conn. App. 369, 378, 908 A.2d 1145 (2006).

The definition of operation derives from our case law. Neither § 14-227a nor any related statute defines operation of a motor vehicle. State v. Haight, 279 Conn. 546, 551, 903 A.2d 217 (2006). In State v. Swift, 125 Conn. 399, 6 A.2d 359 (1939), however, our Supreme Court approved a jury instruction that has emerged as the definition of operation in our jurisdiction: “A person operates a motor vehicle within the meaning of this statute, when in the vehicle he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of the vehicle.” (Emphasis added; internal quotation marks omitted.) Id., 403. In State v. Ducatt, 22 Conn. App. 88, 575 A.2d 708, cert. denied, 217 Conn. 804, 584 A.2d 472 (1990), this court employed the Swift definition by stating that “[a]n accused operates a motor vehicle within the meaning of General Statutes § 14-227a (a) when, while under the influence of alcohol or any drug and while in the vehicle and in a position to control its movements, he manipulates, for any purpose, the machinery of the motor or any other machinery manipulable from the driver’s position that affects or could affect the vehicle’s movement, whether the accused moves the vehicle or not.” (Emphasis added.) Slate v. Ducatt, supra, 93. Our Supreme Court most recently applied the Swift definition, and noted its endurance, in State v. Haight, supra, 551 (“[i]n State v. Swift [supra, 403] this court set forth the definition of ‘operation’ of a motor vehicle that our courts have applied since”). In Haight, the court held that the defendant’s act of inserting keys into the ignition while in the vehicle constituted operation because such act alone or in sequence would set in motion the motive power of the vehicle. State v. Haight, supra, 555.

The defendant maintains that because he neither had the key in the ignition, nor took any other step while in the vehicle to engage its motive power, the state could not prove operation as required by the statute. The state argues that this case is controlled by Haight because the defendant’s act of using the remote starter to engage the vehicle’s engine is the functional equivalent of inserting the key into the ignition. According to the state, both are acts that alone or in sequence will set in motion the motive power of the vehicle. In light of the well established definition of operation and the state’s failure to allege any facts that would warrant an expansion of that definition, we conclude that the court should have granted the defendant’s motion to dismiss on the basis of the stipulated facts.

The facts before us plainly reveal that the defendant made use of the vehicle’s mechanical or electrical agency only from outside the vehicle. The state attempts to equate the use of a remote starter to the insertion of keys into the ignition as constituting the first act that alone or in sequence would put the vehicle in motion. The state did not, however, allege or produce any evidence as to whether the defendant had the keys on his person when inside the vehicle or whether the vehicle was capable of motion without the keys. Without those facts, the state cannot establish such a sequence and, ultimately, cannot justify its prosecution.

Viewing the facts in the light most favorable to the state, we conclude that the state did not have sufficient evidence to continue prosecution and that the court should have granted the defendant’s motion to dismiss.

The judgment is reversed and the case is remanded with direction to render judgment of not guilty.

In this opinion the other judges concurred.

       General Statutes (Rev. to 2005) § 14-227a (a) provides: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if such person operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drug or both, or (2) while such person has an elevated blood alcohol content. For the purposes of this section, ‘elevated blood alcohol content’ means a ratio of alcohol in the blood of such person that is eight-hundredths of one per cent or more of alcohol, by weight.

       General Statutes § 54-94a provides in relevant part: “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 or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law provided a trial court has determined that a ruling on such motion to suppress or motion to dismiss would be dispositive of the case. 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. ...”

       We note that the defendant did not fully comply with Practice Book § 61-10, which requires the appellant to provide an adequate record to this court. See State v. Brunetti, 279 Conn. 39, 63, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S. Ct. 1328, 167 L. Ed. 2d 85 (2007). “An adequate record generally includes either a memorandum of decision or a transcript signed by the trial judge; Practice Book § 64-1 . . . .” (Citations omitted.) Kidwell v. Calderon, 98 Conn. App. 754, 757, 911 A.2d 342 (2006). The defendant provided this court with an unsigned transcript of part of the proceedings. On occasion, we will entertain appellate review of an unsigned transcript when it sufficiently states the court’s findings and conclusions. See Tisdale v. Riverside Cemetery Assn., 78 Conn. App. 250, 254 n.5, 826 A.2d 232, cert. denied, 266 Conn. 909, 832 A.2d 74 (2003). Parties are cautioned to ensure timely compliance with Practice Book § 61-10.

       We note that the joint stipulation of facts states that “[a]t no time while in the vehicle did [the defendant] put the keys in the ignition.” During oral argument, the state argued that this sentence implies that the defendant had the keys with him in the vehicle. The sentence, however, is ambiguous and can equally be read as implying that the keys were not in the vehicle at all.