text:
    BOHONNON LAW FIRM, LLC v. JOHN H. BAXTER
    (AC 32115)
    Graendel, Bear and Mihalakos, Js.

      Argued June 2
    officially released September 13, 2011

      Kenneth A. Votre, for the appellant (defendant).

      K. Wynne Bohonnon, for the appellee (plaintiff).
   Opinion

BEAR, J.

The defendant, John H. Baxter, appeals from the judgment of the trial court rendered in favor of the plaintiff, the Bohormon Law Firm, LLC, on its complaint against the defendant for, inter alia, breach of contract for legal services. On appeal, the defendant claims that the court improperly: (1) denied his motion to dismiss, (2) denied his motion to open the default, (3) curtailed his defense as to damages, (4) awarded attorney’s fees to the plaintiff and (5) failed to protect his right to due process of law. We affirm the judgment of the trial court.

The following facts and very detailed procedural history are relevant to our consideration of the defendant’s claims on appeal. After successfully securing an order for prejudgment remedy in the amount of $20,000 against the defendant, the plaintiff directed a marshal of the county of New London to summon the defendant. The plaintiff did not use the standard civil summons, form JD-CV-1. Rather, the plaintiff prepared its own writ of summons, which provided: “By the authority of the state of Connecticut, you are hereby commanded to Attach and Garnish to the value of TWENTY THOUSAND Dollars ($20,000) in the goods or estate of JOHN H. BAXTER (69 NECK RD., OLD LYME, CONNECTICUT) and summon her/him/it/them to Appear before the Superior Court for the New Haven Judicial District at New Haven on or before the 23 day of DECEMBER, 2008, said Appearance to be made by the/each defendant or her/his/its/their attorney, by filing a written statement of Appearance with the Clerk of said Court on or before the second day following said Return Date, then and there to answer unto BOHONNON LAW FIRM L.L.C, a duly authorized Connecticut limited liability company maintaining a principal place of business in New Haven, Connecticut, in a civil action wherein the plaintiff complains and says . . . The plaintiffs three count complaint immediately follows the writ of summons, beginning on the same page. On the third page of the document, the plaintiff sets forth its claims for relief and states: “Of this Writ, with your doings thereon, make due Service and Return. Dated at New Haven, Connecticut, this 5 day of December, 2008.” The signature of Joshua H. Brown, Commissioner of the Superior Court, is affixed, and the address and telephone number of his law firm are listed, as is his juris number.

On December 8, 2008, state marshal Neil Feinberg attested that he had attached all of the right, title and interest of John H. Baxter in 69 Neck Road, Old Lyme. Included on that document is a description of 69 Neck Road and the following further attestation: “and on the 8th day of said December A.D., 2008,1 left in said Town Clerk’s office in the Town of Old Lyme the original certificate of attachment with my endorsement thereon. And I also on the 8th day of said Dec. 2008 left a like true and attested copy of this application, order, affidavit and writ [of] summons, complaint and entire process, with my endorsement thereon ... at the usual place of abode of John H. Baxter, 69 Neck Road, Old Lyme, Connfecticut], said Defendant . . . .” The return of service was filed with the court on December 11, 2008.

On December 30, 2008, the plaintiff filed a motion for default for failure to appear, and, on January 9, 2009, the defendant’s counsel filed an appearance. On January 23, 2009, the plaintiff filed a motion for default for failure to plead, which the clerk granted on February 5, 2009. The defendant filed a motion to open the default, #104, and a motion to discharge attachment, also #104, on February 19, 2009, and he filed a motion to dismiss for lack of subject matter jurisdiction, #105, at the same time. The defendant asserted in the motions that the writ of summons and complaint were never returned to the court. He further asserted that the only documents properly returned to the court were those for the prejudgment remedy, which contained an October 24, 2008 return day. See footnote 2 of this opinion.

On February 20, 2009, the court sent out a “corrected order” stating that the motion for default for failure to plead was denied because “no return of writ was filed.” The defendant alleges, however, that on February 26, 2009, the court sent another notice to the parties, stating that the corrected order was in error and that the default for failure to plead properly had been entered on February 5, 2009. On March 10, 2009, the plaintiff filed a certificate of closed pleadings, claiming a hearing in damages. On March 26, 2009, the defendant again filed a motion to open the default, #109, and a motion to dismiss for lack of subject matter jurisdiction, #110. On April 23, 2009, the plaintiff filed an objection to the motion to dismiss. On May 11, 2009, the court held a hearing on the motion to dismiss and ruled that the marshal properly had made service, that the return day was December 23, 2008, and that the complaint and other documents were returned to the court on December 11, 2008. Accordingly, the court sustained the plaintiffs objection and denied the motion to dismiss.

On May 13, 2009, the plaintiff filed an objection to the defendant’s motion to open the default. On May 15, 2009, the court ordered the case stricken from the inventory of cases for hearings in damages. On June 9, 2009, the court overruled without prejudice the plaintiffs May 13, 2009 objection to the motion to open the default, stating that it would reconsider the objection if the defendant failed to file his answer, with special defenses or counterclaims, if any, within seven calendar days. The record indicates that the clerk’s office sent notice of this decision to the defendant’s counsel on June 10,2009. On July 14,2009, the plaintiff filed another certificate of closed pleadings, and the court scheduled the matter for a September 9, 2009 hearing in damages.

On September 4, 2009, the defendant filed a motion entitled “Motion to Correct Status of Pleadings, for Rectification of Court File and for Removal from Trial List.” He also filed an affidavit in which counsel averred, inter alia, that he had never received notice of the court’s June 9, 2009 ruling, in which the court gave the defendant seven days to file his answer. On September 9, 2009, the defendant filed his answer. Dining the hearing in damages held that day, the defendant argued that the court should set aside the default. In a February 5, 2010 memorandum of decision, the court stated that it would not reconsider the February 5, 2009 default, and it rendered judgment in the amount of $19,376.69, together with costs, in favor of the plaintiff. This appeal followed.

I

On appeal, the defendant claims that the court improperly denied his motion to dismiss for lack of subject matter jurisdiction. The defendant argues: “The process that was served upon [the] defendant was defective in that it failed to establish a return date. It failed to be returned within [six] days of a return date and it failed to be served at least [twelve] days before a return date. Therefore, the court lacks subject matter jurisdiction over this action.” He further argues that “prejudgment remedy documents are insufficient to commence an action. ... [In this case] [t]he writ of summons and complaint are not sufficient... to commence an action.” (Citations omitted.) Although the defendant argues that his claim implicates the court’s subject matter jurisdiction, we conclude that the defendant’s claim implicates the court’s personal jurisdiction over the defendant. See Hillman v. Greenwich, 217 Conn. 520, 526, 587 A.2d 99 (1991) (failure to comply with statutory prerequisite to commencement of civil action pursuant to General Statutes § 52-45a implicates personal jurisdiction over defendant). Furthermore, we conclude that the defendant, by filing his motion to dismiss more than thirty days after the filing of his appearance, has waived any claim regarding lack of personal jurisdiction in this case. See footnote 9 of this opinion; Pitched v. Hartford, 247 Conn. 422, 432-33, 722 A.2d 797 (1999) (claim of lack of jurisdiction over person as result of insufficiency of service of process is waived unless raised by motion to dismiss within thirty days after filing appearance).

II

The defendant next claims that the court abused its discretion in not opening the default for failure to plead. The defendant argues that “[t]he granting, opening, mislogging of [the] motion to dismiss and regranting of the motion for default, despite the motion to dismiss, has deprived the defendant of his right to plead. It implicates the defendant’s due process rights. It also establishes good cause to open the default.” The plaintiff argues that the court did not abuse its discretion in declining to open the default because the defendant had failed to file an answer and continued to persist in his erroneous argument that a motion to dismiss was a responsive pleading that required the opening of a default for failure to plead. We agree with the plaintiff.

A motion to open a default for failure to plead is governed by Practice Book §§ 17-32 and 17-42. “The opening of a default when a claim for a hearing in damages has been filed is controlled by Practice Book § 17-42 because that is the rule of practice that addresses the setting aside of a default by the judicial authority. . . . The distinction between whether Practice Book § 17-32 applies or Practice Book § 17-42 applies is whether a claim for a hearing in damages is filed before, or after, a motion to set aside the default is filed.” Snowdon v. Grillo, 114 Conn. App. 131, 138, 968 A.2d 984 (2009).

In this case, the defendant’s first motion to open the default for failure to plead was filed on February 19, 2009, before a claim for a hearing in damages had been filed. That default, therefore, pursuant to Practice Book § 17-32, could have been opened by the clerk upon the defendant’s filing of an answer to the plaintiffs complaint. The defendant, however, did not file an answer. Accordingly, the default could not be set aside at that time. The defendant also filed a motion to open the default for failure to plead on March 26, 2009. The plaintiff, however, had filed a claim for a hearing in damages on March 10,2009, which, pursuant to Practice Book § 17-42, meant that the court, upon good cause shown, had the discretion to grant the motion to open the default for failure to plead. “[T]he determination of whether to set aside [a] default is within the discretion of the trial court . . . and will not be disturbed unless that discretion has been abused or where injustice will result. In the exercise of its discretion, the trial court may consider not only the presence of mistake, accident, inadvertence, misfortune or other reasonable cause . . . factors such as [t]he seriousness of the default, its duration, the reasons for it and the degree of contumacy involved . . . but also, the totality of the circumstances, including whether the delay has caused prejudice to the nondefaulting party.” (Citations omitted; internal quotation marks omitted.) Higgins v. Karp, 243 Conn. 495, 508, 706 A.2d 1 (1998).

After consideration of the defendant’s motion to open and the plaintiffs objection thereto, the court, on June 9, 2009, overruled the objection, without prejudice, giving the defendant seven days to file an answer. Again, the defendant did not file an answer. Although the defendant continued to argue to the court that the court did not have jurisdiction because service of process had not been effectuated and returned to the court properly, the court had denied the defendant’s motion to dismiss claiming such lack of jurisdiction on May 11, 2009. The defendant did not file an answer to the plaintiffs complaint until the day of the hearing in damages, September 9, 2009. The court, at that time, stated that it would not reconsider its earlier ruling. Although the defendant argues that the irregularities in the clerk’s office procedure established good cause for opening the default, he does not explain why it was an abuse of discretion for the court to refuse to set aside the default.

Practice Book § 17-42 permits the court to set aside a default “for good cause shown upon such terms as it may impose. ...” In this case, the court, on June 9, 2009, gave the defendant seven days to file his answer to the plaintiffs complaint, which would have set aside the default previously issued. The defendant, however, failed to comply with that order and did not file his answer for another three months. Reviewing the record in conjunction with the arguments raised on appeal, we conclude that the defendant has failed to establish that the court abused its discretion in this case. The court acted within its discretion in June, 2009, when it gave the defendant seven days to file an answer to a complaint that had a return date of December 23, 2008. Furthermore, the defendant has failed to establish that it was an abuse of discretion for the court to decline to revisit the default during the hearing in damages, which was held on September 9, 2009.

Ill

The defendant next claims that “[t]he court improperly curtailed [his] defense as to damages in violation of [his] due process rights.” The defendant also argues that he objected to the admission of an affidavit on the issue of the attorney’s fees and that the court improperly overruled the objection, thereby precluding him from cross-examining the affiant on the issue of damages. We conclude that this claim is briefed inadequately, the entire briefing consisting of only two small paragraphs.

Although setting forth one conclusory statement that the court’s actions violated his due process rights, the defendant does not set forth in his appellate brief a due process analysis of this claim, nor does he indicate whether his claim concerns procedural due process, substantive due process or both. See Columbia Air Services, Inc. v. Dept, of Transportation, 293 Conn. 342, 358 n.7, 977 A.2d 636 (2009) (party should indicate and provide separate cases and analysis on procedural due process claim and substantive due process claim). “[W]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) State v. Carpenter, 275 Conn. 785, 826, 882 A.2d 604 (2005), cert. denied, 547 U.S. 1025,126 S. Ct. 1578,164 L. Ed. 2d 309 (2006). Accordingly, we decline to review this claim.

IV

The defendant also claims that the court improperly awarded attorney’s fees to the plaintiff in connection with this litigation. He argues that “[t]he court violated the defendant’s rights to due process of law, both under the Connecticut and U.S. Constitutions, when it allowed an affidavit for attorney’s fees but precluded a cross-examination or challenge to the affidavit by defense counsel.” After citing some general law on the right to litigate the reasonableness of attorney’s fees, he provides the following, which represents the entire analysis of his claim: “When it errantly allowed an [affidavit for attorney’s fees but precluded a cross-examination or challenge not only to the [affidavit but the admission of the [a]ffidavit, the [c]ourt violated the [defendant's rights to [d]ue [p]rocess of law. Therefore, such award should be reconsidered, or considered for argument once again.” We again conclude that the defendant had failed to provide adequate briefing on this alleged constitutional issue. See part III of this opinion.

Furthermore, we note that the defendant’s counsel expressly waived this issue during the hearing on damages when he, initially, told the court that the plaintiffs counsel did not have to testify concerning the affidavit of attorney’s fees. The following colloquy occurred:

“[The Plaintiffs Counsel]: I would like to submit an affidavit of my claim for interest and an affidavit for my claim of attorney’s fees in this case, based on . . . language in exhibit A [the retainer agreement], if the court should find that I’m entitled to those extra damages based on exhibit A.
“[The Defendant’s Counsel]: I have to see them first to see if I have an objection, Your Honor.
“[The Plaintiffs Counsel]: I would ask the court, if the court would take a moment to review my affidavit of attorney’s fees. I did approximate one entry on my affidavit, which was approximated that this matter would take one hour this morning and, Judge, in fact, it’s taken three hours. So, if the court feels it’s appropriate at my normal billing rate of $250 an hour, I would ask the court to, I believe, increase my claimed legal fees of $2100 to $2600, if the court felt that was appropriate.
“ [The Defendant’s Counsel]: Your Honor, I don’t think that he is going to have to testify to it, I think, because, at this point it’s a contested hearing, it’s not where you could just throw an affidavit in. I mean, this isn’t a default where nobody is here. We’re defending this case. And, in terms of his calculations of interest, you know, I guess the court can calculate what it calculates if it wants, but I don’t know that it necessarily—

“The Court: All right. Is that it, gentlemen?

“[The Plaintiffs Counsel]: Your Honor, I have rested, and I have nothing further. I would ask that—
“[The Defendant’s Counsel]: We would request a continuance for an opportunity to have [the defendant], when he is available, to be able to testify. He may be— it may be short. I think I would like to have the opportunity to put him on.
“The Court: Yes, I understand that.
“[The Defendant’s Counsel]: I’m also going to request an opportunity to file a brief. There are some issues that need to be briefed in this case that have come out in this.
“[The Plaintiffs Counsel]: Your Honor, my position is that this is a molehill that is being turned into a mountain. That this is a very simple, straightforward commercial collection matter, and it doesn’t require a brief.
“The Court: I will give you two weeks to file your brief, counsel.
“[The Defendant’s Counsel]: Okay. Can I have the opportunity to put [the defendant] on?
“The Court: No. [The defendant] had his opportunity. I don’t know how long this calendar—and I don’t know how long he has been away, wherever he is, he should have been present if he wanted to be heard.
“[The Defendant’s Counsel]: I can’t have him testify either? I couldn’t get a continuance, I couldn’t have him testify, we haven’t been allowed to file an answer, but the errors that the clerk’s office made, they are okay? Okay. Okay. Your Honor, in two weeks, I will file a brief.”

Counsel then stated that he now was objecting to the use of an affidavit to prove attorney’s fees in the case and that testimony should be required. Specifically, he stated: “I do, for the record, I object to using an affidavit of attorney’s fees and an affidavit of interest, too. I think he has to be able to be prepared to testify to that, and you are not requiring him to testify.” The court, however, essentially advised him that the hearing was over.

“It is axiomatic that a trial court must [afford] the parties the opportunity to present evidence and to be heard on the issue of reasonable attorney’s fees. . . . [A] party seeking attorney’s fees must satisfy the undisputed requirement that the reasonableness of attorney’s fees and costs ... be proven by an appropriate evidentiary showing. . . . This protects the opposing party’s right to litigate fully the reasonableness of the attorney’s fees.” (Internal quotation marks omitted.) Arcano v. Board of Education, 81 Conn. App. 761, 770-71, 841 A.2d 742 (2004). Our Supreme Court, in Smith v. Snyder, 267 Conn. 456, 479, 839 A.2d 589 (2004), clarified the evidentiary burden required in a claim forf attorney’s fees, holding that “the proponent must present to the court at the time of trial ... a statement of the fees requested and a description of services rendered.” The court in Smith determined that although the plaintiffs’ mere request for attorney’s fees was inadequate under this standard, the court would not reverse the award of attorney’s fees because opposing counsel did not object to the request. Id., 481. The court concluded that “the defendants, in failing to object to the plaintiffs’ request for attorney’s fees, effectively acquiesced in that request, and, consequently, they now will not be heard to complain about that request.” Id.

In the present case, the record reveals that the plaintiffs counsel provided to the court an affidavit on the issue of attorney’s fees. The defendant’s attorney initially stated that the plaintiffs attorney did not need to testify on the matter. It was only after the court again denied his request for a continuance that the defendant’s counsel voiced any concern about the affidavit or about a desire to cross-examine the plaintiffs attorney. The transcript from the hearing reveals that the hearing in damages had concluded at that point, however, and that the parties merely were wrapping up a briefing schedule. “When a party consents to or expresses satisfaction with an issue at trial, claims arising from that issue are deemed waived and may not be reviewed on appeal.” State v. Smith, 289 Conn. 598, 621, 960 A.2d 993 (2008).

V

Finally, the defendant claims that the court failed to protect his right to due process of law. The defendant’s brief sets forth the following: “In totality, the failure to ‘code’ the defendant’s pleadings when filed, the entrance, vacation of reentrance of default against the defendant, and the imposition of attorney’s fees on the simple basis of [an] affidavit without allowing the defendant his right and benefit to cross-examine or challenge such imposition, have combined to effect a deprivation of the defendant’s right to due process in the above captioned matter.” This one sentence, however, sets forth the entire briefing on this alleged constitutional claim by the defendant. The defendant does not explain whether he is claiming a violation of procedural due process or substantive due process. See Columbia Air Services, Inc. v. Dept. of Transportation, supra, 293 Conn. 358 n.7. There is no citation to authority, no standard of review and no analysis set forth in his brief. Accordingly, we decline to review this claim. See Knapp v. Knapp, 270 Conn. 815, 823 n.8, 856 A.2d 358 (2004) (“We consistently have held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Where the parties cite no law and provide no analysis of their claims, we do not review such claims.” [Internal quotation marks omitted.]).

The judgment is affirmed.

In this opinion the other judges concurred.

       To determine the dates of pleadings, we thoroughly have examined the court file and examined the date stamps on the individual documents. We also have examined the documents included in the appendix supplied by the defendant, which include several orders of the court, which we are unable to find in the actual court file. We note that some of the pleadings also do not appear to have been coded properly into the case detail sheet at the time of filing, if at all. For example, the date stamp on the defendant’s motion to open default, #109, is March 26, 2009. On the case detail sheet, however, the filing date is June 26, 2009. Also, the defendant’s February 19, 2009 motion to dismiss contains the notation that it is entry # “105” on the actual document, yet the motion is not recorded on the case detail sheet. There is no entry #105 on the sheet.

       The court case detail sheet, however, shows the return date as October 24, 2008.

       Although the plaintiff did not use form JD-CV-1, which is the preprinted civil summons form prepared by the judicial department, the record reveals that the plaintiffs summons substantively complied with General Statutes § 52-45b, which provides:
      “Unless otherwise provided by rule, the forms of legal process for commencement of civil actions may be as follows:
      “(1) Summons for appearance before the Superior Court.
      “To any proper officer:
      “By authority of the state of Connecticut, you are hereby commanded to summon A.B. of . . . (list address or last known address) to appear before the superior court for the judicial district of .... on the .... Tuesday of . . . . , 20 . . , the appearance not to be in person but to be made by A.B. or his attorney by filing a written statement of appearance with the clerk of the court whose address is .... , (include street number and town) on or before the second day following the return date then and there to answer to C.D. of .... in a civil action, in which the plaintiff complains and says: ....
      “I, J.W., the subscribing authority, hereby certify that I have personal knowledge as to the financial responsibility of the plaintiff, and deem it sufficient; or, E.F. of .... is recognized in $ .... to prosecute, etc.
      “Of this writ with your actions thereon make due return.
      “Dated at ... . the .... day of . . . . , 20 . .
      “J.W., Commissioner of the Superior Court.
      “(2) Writ of attachment before the Superior Court.
      “To any proper officer:
      “By authority of the state of Connecticut, you are hereby commanded to attach to the value of ... . dollars the real or personal property of A.B. of ... . (list address or last known address) and him summon to appear before the superior court for the judicial district of .... on the .... Tuesday of . . . . , 20 . . , the appearance not to be in person but to be made by A.B. or his attorney by filing a written statement of appearance with the clerk of the court whose address is.....(including street number and town) on or before the second day following the return date then and there to answer to C.D. of .... in a civil action, in which the plaintiff complains and says: ....
      “I, J.W., the subscribing authority, hereby certify that I have personal knowledge as to the financial responsibility of the plaintiff, and deem it sufficient; or, E.F. of .... is recognized in $ .... to prosecute, etc.
      “Of this writ with your actions thereon make due return.
      “Dated at ... . this .... day of.....20 . .
      “J.W., Commissioner of the Superior Court.”

       The case detall sheet lists motion #104 as a motion for order. The February 19,2009 motion to open the default is not listed on the case detail sheet, nor is the motion to dismiss, #105. The case detail sheet does not have an entry #105.

       The defendant has supplied a copy of this order in the appendix to his appellate brief. The order, however, does not appear in the court file, nor is it recorded on the case detail sheet.

       There is no record of this order in the court file or on the docket sheet, nor did the defendant provide a copy of this alleged order in his appendix.

       December 23, 2008, was a Tuesday. See General Statutes § 52-48; see also footnote 3 of this opinion.

       We note that although the defendant did not list this claim in his statement of the issues, he did brief the issue. The plaintiff, however, did not address this issue in its brief.

       “[J]urisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong. ... A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy. . . . A defect in process, however, such as an improperly executed writ, implicates personal jurisdiction, rather than subject matter jurisdiction. . . . [W]hen a particular method of serving process is set forth by statute, that method must be followed. . . . Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction. . . . The jurisdiction that is found lacking, however, is jurisdiction over the person, not the subject matter. . . .
      “[Although we acknowledge that mandatory language may be an indication that the legislature intended a time requirement to be jurisdictional, such language alone does not overcome the strong presumption of jurisdiction, nor does such language alone prove strong legislative intent to create a jurisdictional bar. . . . [A] conclusion that a time limit is subject matter jurisdictional has very serious and final consequences. It means that, except in very rare circumstances ... a subject matter jurisdictional defect may not be waived . . . may be raised at any time, even on appeal . . . and that subject matter jurisdiction, if lacking, may not be conferred by the parties, explicitly or implicitly. ... A challenge to a court’s personal jurisdiction, however, is waived if not raised by a motion to dismiss within thirty days of the filing of an appearance. Pitchell v. Hartford, 247 Conn. 422, 433, 722 A.2d 797 (1999) ([t]he rule specifically and unambiguously provides that any claim of lack of jurisdiction over the person as aresult of an insufficiency of service of process is waived unless it is raised by a motion to dismiss filed within thirty days [after the filing of an appearance] . . .); see also Practice Book § 10-32 ([a]ny claim of lack of jurisdiction over the person ... is waived if not raised by a motion to dismiss). Therefore, we have stated many times that there is a presumption in favor of subject matter jurisdiction, and we require a strong showing of legislative intent that such a time limit is jurisdictional.” (Internal quotation marks omitted.) Merrill
        v. NRTNew England, Inc., 126 Conn. App. 314, 319-20, 12 A.3d 575, cert, granted on other grounds, 300 Conn. 925, 15 A.3d 629 (2011).

       General Statutes § 52-45a provides: “Civil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day, the date and place for the filing of an appearance and information required by the Office of the Chief Court Administrator. The writ shall be accompanied by the plaintiffs complaint. The writ may run into any judicial district and shall be signed by a commissioner of the Superior Court or a judge or clerk of the court to which it is returnable.”
      General Statutes § 52-46 provides: “Civil process, if returnable to the Supreme Court, shall be served at least thirty days, inclusive, before the day of the sitting of the court, and, if returnable to the Superior Court, at least twelve days, inclusive, before such day.”
      General Statutes § 52-46a provides: “Process in civil actions returnable to the Supreme Court shall be returned to its clerk at least twenty days before the return day and, if returnable to the Superior Court, except process in summary process actions and petitions for paternity and support, to the clerk of such court at least six days before the return day.”

       Although stating that this implicates his due process rights, the defendant does not set forth a due process analysis related to this claim.

       Practice Book § 17-42 provides: “A motion to set aside a default where no judgment has been rendered may be granted by the judicial authority for good cause shown upon such terms as it may impose. As part of its order, the judicial authority may extend the time for filing pleadings or disclosure in favor of a party who has not been negligent. Certain defaults may be set aside by the clerk pursuant to Sections 17-20 and 17-32.”

       Our review of the record reveals that the defendant’s attorney filed an affidavit with the defendant’s September 4, 2009 motion to correct status of pleadings, in which he averred, in part, that he had not received notice of the court’s June 9,2009 order giving him seven days to file an answer. The defendant, however, has not raised an argument concerning this averment or this motion on appeal.

       It is not completely clear whether the defendant is arguing specifically about the claim for damages for unpaid legal fees or for the plaintiffs claim for attorney’s fees for bringing this action, or both. We note that the defendant briefed separately a claim regarding the court’s alleged improper restriction of his right to cross-examine on the issue of attorney’s fees. See part IV of this opinion.

       The Supreme Court in Carpenter noted: “The only specific constitutional argument made by the defendant regarding this issue is the summary statement in her brief that [t]he defendant was denied [her] constitutional right to cross-examine [certain witnesses].” State v. Carpenter, supra, 275 Conn. 827 n.19. Similarly, in the present case, the defendant merely asserts that his due process rights were violated, without citation to authority or any due process analysis.

       The defendant’s attorney, on a previous day, had requested a continuance of the hearing in damages, which had been denied by the court. Earlier during the hearing in damages, counsel again requested that the hearing be continued because the defendant was away on vacation. The court again denied the request.

       The transcript of the hearing incorrectly credits this statement to the plaintiffs attorney. It does appear clear from reading the transcript, however, that it was the defendant’s attorney who voiced this objection.


source: Caselaw Access Project

author: LAVINE, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. EDDIE BONILLA
    (AC 31927)
    DiPentima, C. J., and Lavine and Bear, Js.

      Argued June 1
    officially released September 13, 2011

      Sydney T. Schulman, with whom, on the brief, was Alina Bricklin-Goldstein, for the appellant (defendant).

      Nancy L. Walker, special deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, former state’s attorney, and Jason Germain, assistant state’s attorney, for the appellee (state).
   Opinion

LAVINE, J.

In this case, we are called upon to decide whether the defendant was properly convicted of a felony because he knowingly acted as a spectator at an illegal activity—a cockfight. We conclude that the defendant was properly convicted under General Statutes § 53-247 (c) and that his constitutional claims are without merit.

The defendant, Eddie Bonilla, appeals from the judgment of conviction, rendered after he entered a conditional plea of nolo contendere, of one count of cruelty to animals in violation of § 53-247 (c) (4). On appeal, the defendant claims that § 53-247 (c) (4) is unconstitutional because it (1) impinges on his rights of freedom of assembly and freedom of association as guaranteed by the first amendment to the United States constitution and (2) violates his equal protection rights as guaranteed by the fourteenth amendment to the United States constitution. We disagree, and, accordingly, affirm the judgment of conviction.

The following facts and procedural history are relevant to this case. On February 28, 2009, police responded to a complaint of ongoing cockfights at 1014 Main Street in Waterbury (property). After obtaining a search warrant, the police discovered evidence of cockfighting at the property and arrested several people, including the defendant, whom the police reported seeing around the cockfighting ring. When arrested, the defendant was in possession of $905.

The defendant was charged in a substituted information with one count each of cruelty to animals in violation of § 53-247 (c) (4), cruelty to animals in violation of § 53-247 (c) (5) and gambling in violation of General Statutes § 53-278b (a). On January 11, 2010, the defendant filed an amended motion to dismiss the charges against him, alleging that § 53-247 (c) violates his rights under the first, fifth and fourteenth amendments to the United States constitution and article first, §§ 8, 14 and 20, of the constitution of Connecticut. The court denied the defendant’s motion without issuing a written or oral memorandum of decision.

On January 12, 2010, the defendant entered a plea of nolo contendere to the charge of cruelty to animals in violation of § 53-247 (c) (4). The defendant’s plea, however, was conditioned on his right to appeal the constitutional claims raised in his motion to dismiss. The court imposed an effective sentence of three years imprisonment, execution suspended, and three years conditional discharge. This appeal followed.

“A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the [state] cannot as a matter of law and fact state a cause of action that should be heard by the court. . . . [0]ur review of the trial court’s ultimate legal conclusion and resulting [denial] of the motion to dismiss will be de novo.” (Internal quotation marks omitted.) State v. St. Louis, 128 Conn. App. 703, 717, 18 A.3d 648 (2011).

I

The defendant first claims that § 53-247 (c) (4) unconstitutionally infringes on his right of freedom of assembly and freedom of association as guaranteed by the first amendment to the United States constitution. Specifically, the defendant argues that “criminalizing as a felony the mere observation of a criminal act as a ‘spectator’ is an invasive, unconstitutional abridgment of his freedom of assembly [and freedom of association] . . . .” (Emphasis in original.) We disagree.

The constitutionality of a statute presents a question of law; see State v. Long, 268 Conn. 508, 520-21, 847 A.2d 862, cert. denied, 543 U.S. 969, 125 S. Ct. 424, 160 L. Ed. 2d 340 (2004); over which our review is plenary. State v. Long, 301 Conn. 216, 236, 19 A.3d 1242 (2011). “We recognize that a party challenging the constitutionality of a statute must prove its unconstitutionality beyond a reasonable doubt. . . . While the courts may declare a statute to be unconstitutional, our power to do this should be exercised with caution, and in no doubtful case. . . . Every presumption is to be given in favor of the constitutionality of the statute.” (Internal quotation marks omitted.) Blakeslee Arpaia Chapman, Inc. v. El Constructors, Inc., 239 Conn. 708, 754, 687 A.2d 506 (1997). “Unless laws create suspect classifications or impinge upon constitutionally protected rights ... it need only be shown that they bear some rational relationship to a legitimate state purpose . . . .” (Citation omitted; internal quotation marks omitted.) Dallas v. Stanglin, 490 U.S. 19, 23, 109 S. Ct. 1591, 104 L. Ed. 2d 18 (1989).

The first amendment to the United States constitution provides: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” “The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental. . . . The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances. The First Amendment of the Federal Constitution expressly guarantees that right against abridgment by Congress.” (Internal quotation marks omitted.) De Jonge v. Oregon, 299 U.S. 353, 364, 57 S. Ct. 255, 81 L. Ed. 278 (1937).

The United States Supreme Court, however, also has concluded that the right of assembly “may be abused by using . . . assembly in order to incite to violence and crime. The people through their legislatures may protect themselves against that abuse. ... If the persons assembling have committed crimes elsewhere, if they have formed or are engaged in a conspiracy against the public peace and order, they may be prosecuted for their conspiracy or other violation of valid laws.” Id., 364-65.

Although not expressly enumerated in the first amendment, the right of association has been recognized as a fundamental right under the first amendment as well. “It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.” National Assn. for the Advancement of Colored People v. Alabama, 357 U.S. 449, 460, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958). “[T]he right to engage in activities protected by the First Amendment implies a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends. . . . [impediments to the exercise of one’s right to choose one’s associates can violate the right of association protected by the First Amendment . . . .” (Citations omitted; internal quotation marks omitted.) Board of Directors of Rotary International v. Rotary Club, 481 U.S. 537, 548, 107 S. Ct. 1940, 95 L. Ed. 2d 474 (1987).

The United States Supreme Court has “referred to constitutionally protected ‘freedom of association’ in two distinct senses. In one line of decisions, the Court has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme. In this respect, freedom of association receives protection as a fundamental element of personal liberty. In another set of decisions, the Court has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment—speech, assembly, petition for the redress of grievances, and the exercise of religion.” Roberts v. United States Jaycees, 468 U.S. 609, 617-18, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984).

In Dallas v. Stanglin, supra, 490 U.S. 19, the United States Supreme Court further clarified the types of association that are protected under the first amendment. In that case, the city of Dallas passed an ordinance authorizing the licensing of dance halls that restricted admission to persons between the ages of fourteen and eighteen. Id., 21. The owner of one of the dance halls sought an injunction, claiming that the ordinance “unconstitutionally infringed the rights of persons between the ages of [fourteen] and . . . [eighteen] to associate with persons outside that age bracket.” Id., 22.

In addressing the dance hall owner’s claim, the court first noted that the dance hall patrons were not engaged in the sort of intimate human relationships referred to in Roberts v. United States Jaycees, supra, 468 U.S. 617-18. Dallas v. Stanglin, supra, 490 U.S. 24. The court further concluded that the ordinance “limits the minors’ ability to dance with adults who may not attend, and it limits the opportunity of such adults to dance with minors. These opportunities might be described as ‘associationaV in common parlance, but they simply do not involve the sort of expressive association that the First Amendment has been held to protect. The hundreds of teenagers who congregate each night at this particular dance hall are not members of any organized association; they are patrons of the same business establishment. Most are strangers to one another, and the dance hall admits all who are willing to pay the admission fee. There is no suggestion that these patrons ‘take positions on public questions’ or perform any of the other similar activities described in Board of Directors of Rotary Internationale. [Rotary Club, supra, 481 U.S. 548].” (Emphasis added.) Dallase. Stanglin, supra, 24-25. Moreover, the court noted that “we do not think the Constitution recognizes a generalized right of ‘social association’ that includes chance encounters in dance halls”; id., 25; and, accordingly, concluded that the ordinance “impinges on no constitutionally protected right.” Id.

The defendant in the present case was convicted of cruelty to animals in violation of § 53-247 (c) (4). Section 53-247 (c) provides in relevant part: “Any person who knowingly ... (4) acts as judge or spectator at an exhibition of animal fighting for amusement or gain . . . shall be fined not more than five thousand dollars or imprisoned not more than five years or both.” The defendant argues that under this statute, he is “being sentenced to a felony, with all of its attendant circumstances, for exercising his rights of freedom of association and assembly merely for being a ‘spectator,’ along with others, at the scene of a cockfight but not partaking therein.” We conclude, however, that § 53-247 (c) (4) does not impinge on the defendant’s right of the freedom of association and assembly.

As noted, the right to assemble, as recognized -under the first amendment, does not encompass the right to assemble for an unlawful purpose. De Jonge v. Oregon, supra, 299 U.S. 364-65. The defendant argues that he was not partaking in an unlawful activity but merely assembled with others “who may or may not themselves actually [be] engaged in or conducted the cockfight itself.” We conclude, however, that, as a spectator at a cockfight, an individual is engaged in promoting and facilitating the existence of the unlawful conduct. “ [Prohibiting knowing presence of spectators at animal fights is consistent with the legislative purpose to prevent such fights because, without the ‘knowing presence’ of spectators, much of the ‘sport’ of the fights would be eliminated.” People v. Bergen, 883 P.2d 532, 545 (Colo. App.), cert. denied, 1994 Colo. LEXIS 849 (Colo. November 15, 1994); see also State v. Tabor, 678 S.W.2d 45, 48 (Tenn. 1984) (“[prohibiting the public exhibition of [cockfighting] can be reasonably achieved by making willful attendance at them a criminal offense”).

In State v. Arnold, 147 N.C. App. 670, 557 S.E.2d 119 (2001), aff'd, 356 N.C. 291, 569 S.E.2d 648 (2002), the North Carolina Court of Appeals addressed a similar issue. In that case, the defendant had been convicted of acting as a spectator at an exhibition featuring dog fighting. Id., 671. The defendant appealed from his conviction, claiming that N.C. Gen. Stat. § 14-362.2 (c) was unconstitutional. Id., 672. In rejecting the defendant’s claim, the North Carolina Court of Appeals noted that “people have the right to peacefully assemble for lawful purposes. . . . However, in the case at bar, people, including defendant, were assembled for an unlawful purpose.” (Citation omitted; emphasis in original.) Id., 675.

Cockfighting is unlawful in Connecticut. See General Statutes § 53-247 (c). The defendant was knowingly acting as a spectator at a cockfight, which we have concluded is a form of participation. It is permissible, therefore, under the United States constitution to prohibit an individual from assembling for the knowing purpose of acting as a spectator at a cockfight. Accordingly, we conclude that § 53-247 (c) (4) does not violate the defendant’s constitutional right of the freedom of assembly.

We further conclude that § 53-247 (c) (4) does not violate the defendant’s constitutional right of the freedom of association. As noted, the United States Supreme Court has referred to constitutionally protected “freedom of association” in two distinct senses, namely, the right to associate for the purpose of entering into and maintaining intimate human relationships and for engaging in those activities protected by the first amendment. Roberts v. United States Jaycees, supra, 468 U.S. 617-18.

In Roberts, the United States Supreme Court clarified the meaning of “intimate human relationships.” Specifically, the court noted that “[t]he personal affiliations that . . . suggest some relevant limitations on the relationships that might be entitled to this sort of constitutional protection, are those that attend the creation and sustenance of a family—marriage . . . childbirth . . . the raising and education of children . . . and cohabitation with one’s relatives .... Family relationships, by their nature, involve deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one’s life. Among other things, therefore, they are distinguished by such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship. As a general matter, only relationships with these sorts of qualities are likely to reflect the considerations that have led to an understanding of freedom of association as an intrinsic element of personal liberty.” (Citations omitted.) Id., 619-20. The defendant clearly was not engaged in the sort of intimate human relationships described in Roberts when he knowingly joined others as a spectator at a cockfight. If patrons of a dance hall are not engaged in the type of intimate human relationships that merit freedom of association protection; see Dallas v. Stanglin, supra, 490 U.S. 19; then surely patrons gathered to observe an unlawful activity such as a cockfight are not.

We conclude further that individuals associating with one another for the purpose of acting as spectators at a cockfight “simply do[es] not involve the sort of expressive association that the First Amendment has been held to protect.” Id., 24. The spectators at the cockfight on February 28, 2009, were not, so far as the record reflects, members of any organized association; nor is there any suggestion that these spectators were engaged in taking positions on public questions or engaged in the “pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” (Internal quotation marks omitted.) Board of Directors of Rotary International v. Rotary Club, supra, 481 U.S. 548. Nor were they engaged in scholarly, or eleemosynary pursuits. “It is possible to find some kernel of expression in almost every activity a person undertakes—for example, walking down the street or meeting one’s friends at a shopping mall—but such a kernel is not sufficient to bring the activity within the protection of the First Amendment.” Dallas v. Stanglin, supra, 490 U.S. 25. Attending a cockfight as a spectator is neither a form of “intimate association” nor a form of “expressive association” as recognized by our courts or the United States Supreme Court and, therefore, does not fall under the protection of the defendant’s constitutionally recognized right of freedom of association.

The defendant also argues in his brief to this court that § 53-247 (c) (4) is unconstitutionally “overreaching . . . .” We conclude that the statute does not overreach because it applies only to those individuals who knowingly act as a spectator at a cockfight. The requirement that the conduct be knowing, therefore, protects those individuals who inadvertently or mistakenly find themselves observing a cockfight. It is up to the finder of fact, of course, to determine if the knowledge element has been proven.

Because § 53-247 (c) (4) does not infringe on the defendant’s right of freedom of assembly and freedom of association, “it need only be shown that [the statute] bearfs] some rational relationship to a legitimate state purpose . . . .” (Citation omitted; internal quotation marks omitted.) Dallas v. Stanglin, supra, 490 U.S. 23. The defendant admits that the “suppression of animal cruelty is a legitimate state objective . . . .” Section 53-247 (c) (4) furthers this objective by criminalizing the act of knowingly observing cockfights. As noted, without the knowing presence of spectators, much of the “ ‘sport’ ” of cockfighting would be eliminated, thereby reducing the frequency of cockfights. People v. Bergen, supra, 883 P.2d 545. We conclude that § 53-247 (c) (4) is rationally related to the state’s objective of eliminating animal cruelty and therefore does not violate the defendant’s constitutional right of the freedom of assembly and freedom of association.

II

In his second claim, the defendant argues that § 53-247 (c) (4) infringes on his equal protection rights as guaranteed by the fourteenth amendment to the United States constitution. The defendant claims that by punishing spectators of cockfights but not punishing spectators of other illegal conduct, the state unnecessarily abridges his equal protection rights. Again, we disagree.

“[T]o implicate the equal protection [clause] under the . . . federal [constitution] ... it is necessary that the state statute [or statutory scheme] in question, either on its face or in practice, treat persons standing in the same relation to it differently. . . . Thus, the analytical predicate [of consideration of an equal protection claim] is a determination of who axe the persons similarly situated. . . .

“The equal protection clause does not require absolute equality or precisely equal advantages [between such similarly situated persons] .... To determine whether a particular classification violates the guarantees of equal protection, the court must consider the character of the classification; the individual interests affected by the classification; and the governmental interests asserted in support of the classification. . . . Where . . . the classification at issue neither impinges upon a fundamental right nor affects a suspect group it will withstand constitutional attack if the distinction is founded on a rational basis. . . . Rational basis review is satisfied so long as there is a plausible policy reason for the classification .... [I]t is irrelevant whether the conceivable basis for the challenged distinction actually motivated the legislature.” (Citations omitted; internal quotation marks omitted.) State v. Schultz, 100 Conn. App. 709, 725-26, 921 A.2d 595, cert. denied, 282 Conn. 926, 926 A.2d 668 (2007). “Further, [i]t is no requirement of equal protection that all evils of the same genus be eradicated or none at all. ” (Internal quotation marks omitted.) Cormier v. Commissioner of Motor Vehicles, 105 Conn. App. 558, 566, 938 A.2d 1258 (2008).

We already have concluded that § 53-247 (c) (4) does not impinge on the defendant’s fundamental right of freedom of assembly and freedom of association. See part I of this opinion. Furthermore, spectators at a cockfight are not recognized as part of a suspect group and the defendant has not argued that he is part of a suspect group. Thus, assuming, arguendo, that a spectator at a cockfight is similarly situated to a spectator of other illegal conduct for equal protection purposes, the only issue before us is whether § 53-247 (c) (4) is founded on a rational basis. In part I of this opinion, we concluded that it is.

As noted, “[prohibiting knowing presence of spectators at animal fights is consistent with the legislative purpose to prevent such fights because, without the ‘knowing presence’ of spectators, much of the ‘sport’ of the fights would be eliminated.” People v. Bergen, supra, 883 P.2d 545. In other words, spectators comprise the market that supports, facilitates and perpetuates cockfighting. As noted, being knowingly present thus becomes, in and of itself, a form of participation. Criminalizing the act of being a spectator at a cockfight, therefore, discourages individuals from not only attending cockfights, but inhibits others from organizing, promoting and operating them as well. This is a plausible policy reason—indeed, a powerful policy reason—for criminalizing the act of being a knowing spectator at a cockfight and is more than sufficient to satisfy the rational basis test.

The defendant argues that “[b]ecause it is not a crime to be a spectator as someone is being assaulted, a rather sick individual could make a pastime of frequenting various bars known to have rowdy drinkers who engage in bar brawls without being subjected to any criminal charges or convictions.” Aside from the fact that bar brawls are not staged to entertain a crowd, and that they will presumably continue to occur irrespective of whether spectators are present, this argument is unpersuasive because the legislature does not need to eradicate all the “ ‘evils of the same genus’ Cormier v. Commissioner of Motor Vehicles, supra, 105 Conn. App. 566; for § 53-247 (c) (4) to survive rational basis review. We conclude, therefore, that § 53-247 (c) (4) does not violate the defendant’s rights under the equal protection clause of the United States constitution.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-94a provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress 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. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”
      On November 3,2010, this court, sua sponte, ordered this matter remanded to the trial court with direction to address whether the court denied the defendant’s motion to dismiss and whether its ruling was dispositive of the case, thereby satisfying the requirements of § 54-94a. On January 26, 2011, the court denied the motion to dismiss and concluded that the denial was dispositive of the case.

       Because the first amendment is applicable to the states through the fourteenth amendment to the United States constitution; Thibodeau v. American Baptist Churches of Connecticut, 120 Conn. App. 666, 670, 994 A.2d 212, cert. denied, 298 Conn. 901, 3 A.3d 74 (2010); this right is guaranteed against abridgment by state government as well.

       In its brief to this court, the state analogizes spectating at a cockfight with possessing child pornography. Specifically, the state claims that “spectators provide a market for illegal cockfighting just as possession, distribution and sharing of child pornography provide a market for the sexual abuse of children.”

       Section 14-362.2 (c) of the North Carolina General Statutes provides: “A person who participates as a spectator at an exhibition featuring the fighting or baiting of a dog is guilty of a Class H felony.”

       General Statutes § 53-247 (c) provides: “Any person who knowingly (1) owns, possesses, keeps or trains an animal engaged in an exhibition of fighting for amusement or gain, (2) possesses, keeps or trains an animal with the intent that it be engaged in an exhibition of fighting for amusement or gain, (3) permits an act described in subdivision (1) or (2) of this subsection to take place on premises under his control, (4) acts as judge or spectator at an exhibition of animal fighting for amusement or gain, or (5) bets or wagers on the outcome of an exhibition of animal fighting for amusement or gain, shall be fined not more than five thousand dollars or imprisoned not more than five years or both.” (Emphasis added.)

       The legislative history of § 53-247 (c) (4) details the grotesque nature of cockfighting. Arnold F. Baer, director of the New England office of the Humane Society of the United States, testified on March 21, 1996, during a hearing on House Bill 5803, an act concerning cruelty to animals, that “knives and gaffs ... are attached to the [birds] to ensure that there be death involved and bleeding or cutting. ... In these fights [the birds are] forced to keep fighting and fighting until the death.” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 1996 Sess., p. 2079. Baer went on to add that “some [cockfights] can go for two hours. They throw them into another pit until a winner is established by death. . . . It’s outright animal abuse . . . .” Id., p. 2080.

       While it is not entirely clear to us what the defendant means by “overreaching," as noted, the defendant claims that “the statute at bar is unconstitutionally overreaching, as [he] is penalized for associating and assembling with individuals who may or may not themselves [be] actually engaged in or [who may or may not have] conducted the cockfight itself. In essence, the defendant is being sentenced to a felony, with all of its attendant circumstances, for exercising his rights of freedom of association and assembly for merely being a ‘spectator,’ along with others, at the scene of a cockfight but not partaking therein.”

       There also is a significant rationale supporting the legislature’s decision to make a violation of § 53-247 (c) (4) a felony rather than a misdemeanor. Arnold F. Baer, director of the New England office of the Humane Society of the United States, testified on March 21,1996, during a hearing on House Bill 5803, an act concerning cruelty to animals, and stated that “[sjtates with misdemeanor penalties have become havens for dog and cockfighters. Small fines are no deterrent considering the amount of money to be gained. . . . More and more reports of dog and cockfights are surfacing in Connecticut. Swift and stronger action needs to be taken.” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 1996 Sess., p. 2334.

       The defendant specifically claims that § 53-247 (c) (4) violates his due process and equal protection rights under both the United States and Connecticut constitutions. The defendant, however, does not provide a separate state constitutional analysis, nor does he cite to this court any cases in his brief that reference any state constitutional rights. Furthermore, the defendant has not distinguished his due process claim from the first amendment claim that he raised in part I of his brief. In part n of his brief, the defendant argues that “in 1937, the [United States Supreme Court] held that the right of peaceful assembly was a fundamental right safeguarded by the due process clause of the fourteenth amendment, thus applying to the states.” The defendant goes on to assert that § 53-247 (c) (4) violates his due process rights without providing any supporting case law or any arguments that are different from those introduced in support of his first amendment claim. We will, therefore, only address the defendant’s claim that § 53-247 (c) (4) violates his equal protection rights under the United States constitution.

       The defendant also argues under this claim that the term “spectator” is “vague and indefinite . . . .” It is unclear whether the defendant is claiming that the statute is, therefore, unconstitutionally vague. Even if the defendant is making such a claim, however, we conclude that we do not need to address it because it is briefed inadequately. See State v. Heck, 128 Conn. App. 633, 641 n.2, 18 A.3d 673, cert. denied, 301 Conn. 935, 23 A.3d 728 (2011).


author: ESPINOSA, J.

text:
    SABELE GRAY v. RICHARD E. GRAY
    (AC 30512)
    (AC 31700)
    Beach, Espinosa and Pellegrino, Js.

      Argued May 25
    officially released September 13, 2011

      Richard E. Gray, Sr., pro se, the appellant (defendant).

      Bourke G. Spellacy, with whom, on the brief, was David R. Makarewicz, for the appellee (plaintiff).
   Opinion

ESPINOSA, J.

The self-represented defendant, Richard E. Gray, appeals from several judgments of the trial court rendered in favor of the plaintiff, Sábele Gray, following a judgment of dissolution. In AC 30512, the defendant claims that the court abused its discretion by: (1) finding him in contempt for not making support payments to the plaintiff; (2) modifying his support payments in the manner that it did; (3) denying his motion to compel the plaintiff to produce certain financial documents; (4) excluding certain evidence and failing to take into consideration other evidence; and (5) failing to sanction the plaintiff more harshly for her contemptuous conduct. In AC 31700, the defendant claims that the court abused its discretion by: (1) finding him in contempt for not paying an arrearage on support payments owed the plaintiff; (2) ordering him to return his children’s passports to the plaintiff; and (3) failing to hold an evidentiary hearing related to the passport issue. We affirm the judgments of the trial court.

The following facts are relevant to our consideration of this appeal. The parties were divorced on August 12, 2003. In the dissolution judgment, the court ordered the defendant to pay the plaintiff $6000 in child support and $2750 per month in alimony. On September 11, 2005, the parties signed a postjudgment stipulation that provided for reduced monthly alimony and child support payments, totaling $4500, until June 6, 2008, when the payments were to return to their original levels. The court entered an order incorporating this agreement on October 3, 2005. The defendant paid the reduced amount to the plaintiff between October 3, 2005, and June 6, 2008. The defendant then paid the reduced amount for June, 2008, and subsequently made no alimony or child support payments to the plaintiff in the months of July, August, September or October of that year. Instead, in each of these months, the defendant made payments equaling the reduced amount into separate bank accounts for the stated purpose of providing for the education of two of the parties’ children.

On November 5, 2008, the court, Calmar, J., found the defendant to be in contempt for failing to make support payments directly to the plaintiff in the original amount, as required by the postjudgment stipulation of the parties. Nevertheless, the court found that the defendant had demonstrated a substantial change in circumstances and agreed with the defendant that a modification of his support payments was warranted. The court, therefore, modified the defendant’s $6000 per month child support obligation but did not modify the alimony obligation of $2750 per month. On November 23, 2009, the court, Vitale, J., found the defendant to be in contempt of a court order requiring him to pay a pendente lite arrearage, in the amount of $201,500, to the plaintiff. The court recalculated the interest due on the arrearage but left undisturbed the initial method and monthly amount of payment set at the dissolution proceeding. The defendant appealed both rulings. Additional facts will be set forth as necessary.

I

AC 30512

A

The defendant first claims that the court abused its discretion by finding him in contempt for not making any support payments to the plaintiff between June, 2008, and October, 2008. The defendant alleges that by making payments to bank accounts for the benefit of the children, he was not violating any court order. Alternatively, the defendant asserts that the violation was not wilful. We disagree.

We review decisions of the trial court in family cases for an abuse of discretion. “The standard of review in family matters is that this court will not disturb the trial court’s orders unless it has abused its legal discretion or its findings have no reasonable basis in fact. ... It is within the province of the trial court to find facts and draw proper inferences from the evidence presented. . . . [E]very reasonable presumption will be given in favor of the trial court’s ruling, and [n]othing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference.” (Internal quotation marks omitted.) Rosato v. Rosato, 77 Conn. App. 9, 13, 822 A.2d 974 (2003).

A court may only find a party in contempt when that party has wilfully failed to comply with a court order. “To constitute contempt, a party’s conduct must be wilful. . . . Noncompliance alone will not support a judgment of contempt. . . . We review the court’s factual findings in the context of a motion for contempt to determine whether they are clearly erroneous.” (Internal quotation marks omitted.) Kravetz v. Kravetz, 126 Conn. App. 459, 466, 11 A.3d 1141 (2011).

In the dissolution proceeding in this case, the court ordered the defendant to make support payments to the plaintiff in the amount of $6000 in child support and $2750 per month in alimony. The postjudgment stipulation entered into by the parties on September 11, 2005, provided that support payments would be reduced to $4500 per month until June 6, 2008, when the payments would return to their original amount. In June, 2008, rather than making payments to the plaintiff as required by the court’s original order, the defendant took it upon himself to deposit amounts equal to the payment agreed to in the stipulation agreement, in accounts for the parties’ children. Contrary to the defendant’s position, the court reasonably concluded that these actions were a knowing and wilful failure to comply with the court’s order that, after June 6, 2008, payments be made directly to the plaintiff, in the original amount, as set forth in the parties’ stipulation. Although the defendant may have decided to make payments in a way that better suited him, the court ordered him to make payments directly to the plaintiff, not to bank accounts for the benefit of the children. Accordingly, there was ample support for the court’s finding that the defendant wilfully violated its order, and a finding of contempt was not improper.

B

The defendant next claims that, on November 5,2008, the trial court, Calmar, J., abused its discretion in modifying his child support obligations. The record reflects that the court modified the support payments such that the defendant was required to pay the plaintiff $1868 in child support and $2750 in alimony. The court also required the defendant to pay $373 monthly toward the pendente lite arrearage. Specifically, the defendant claims that even though the court found a substantial change in his financial circumstances, in that he had assumed responsibility for the educational expenses of one of the parties’ children, the court did not modify his obligations sufficiently. Neither the defendant’s scant analysis of this claim nor our review of the record leads us to conclude that the trial court abused its discretion.

C

The defendant also contends that the court improperly denied his motion to compel the plaintiff to produce certain financial documents. Specifically, the defendant moved to compel the plaintiff to complete a financial affidavit that she had filed previously with the court and in which she listed the value of certain stocks as “unknown.” The court noted that the plaintiff completed this affidavit by providing the value of the stocks, and the court had the completed affidavit when it received evidence regarding support payments. The court, therefore, denied the motion. Nevertheless, the defendant asserts that the court did not have all of the relevant information. “The well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts. ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.” (Internal quotation marks omitted.) Hathaway v. Hathaway, 60 Conn. App. 818, 818-19, 760 A.2d 1280 (2000). After reviewing the record, we conclude the court did not abuse its discretion. The defendant requested that the plaintiff include the value of stocks listed on a financial affidavit, and she did so in time for the completed affidavit to be considered by the court.

D

The defendant also claims that the court abused its discretion by: (1) excluding evidence about his state of mind that is relevant to resolving the issue of contempt; and (2) not crediting alleged past payments to the plaintiff against his support obligations. The defendant does not, however, develop these arguments in his brief, making only bare assertions. Additionally, with regard to the claim concerning crediting past payments, the defendant does not set forth the claim in his statement of issues, as required by Practice Book § 63-4 (a) (1). “Although we are solicitous of the rights of pro se litigants . . . [s]uch a litigant is bound by the same rules . . . and procedure as those qualified to practice law.” (Internal quotation marks omitted.) Traylor v. State, 128 Conn. App. 182, 185 n.2, 15 A.3d 1173 (2011). “We consistently have held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . [Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court.” (Internal quotation marks omitted.) Keating v. Ferrandino, 125 Conn. App. 601, 603-604, 10 A.3d 59 (2010). As the defendant has not briefed these issues beyond making statements of the claims, these issues are deemed abandoned on appeal, and we decline to review them.

E

Finally, the defendant claims that the court abused its discretion by granting his motion for contempt but not punishing the plaintiff harshly enough for violating visitation orders regarding the parties’ children. Specifically, the defendant asserts that because the plaintiff failed to abide by fourteen court-ordered visitation days, the court’s order of one additional weekend of visitation with each daughter in his favor amounts to an award for the plaintiff. We review the severity of the sanctions chosen by the court for an abuse of discretion. See Edmond v. Foisey, 111 Conn. App. 760, 774-75, 961 A.2d 441 (2008); see also Hathaway v. Hathaway, supra, 60 Conn. App. 818-19. The court here did not abuse its discretion. Awarding makeup visitation days is an appropriate remedy, and the court could reasonably conclude based on the facts that an award of additional weekend visitation to the defendant was a suitable sanction for the violation.

II

AC 31700

A

The defendant first contends that, on November 23, 2009, the court, Vitale, J., abused its discretion in finding him in contempt for not paying the pendente lite arrearage. The defendant again argues that he did not violate a court order and that, alternatively, any violation was not wilful. In accordance with the standard of review set forth earlier in this opinion, we review the ruling for an abuse of discretion.

In finding the defendant in contempt, the court concluded that the defendant’s interpretation of the post-judgment stipulation, as barring the plaintiff from bringing a contempt action against the defendant for noncompliance and allowing the defendant to reduce the arrearage on the basis of certain unstated “ ‘offsets’ ” and an “ ‘accounting’,” had no reasonable basis in the record. The defendant does not address this determination in his brief and has failed to demonstrate that an order requiring payment of the arrearage did not exist.

The defendant argues that any violation was not wilful for two reasons. First, the defendant contends that he was unaware that his nonpayment of the pendente lite arrearage was contemptuous conduct because, at the time of the dissolution proceeding, the court did not find him in contempt for his nonpayment of the arrearage. This argument is without merit. The court found, and the record reflects, that the defendant had notice of the court’s order to pay the arrearage. His suggestion that a prior holding of contempt was necessary is disingenuous. Second, the defendant contends, as he did before the trial court, that the monthly arrearage payment exceeded his ability to pay. The court thoroughly addressed this issue and concluded that the defendant failed to present a clear and complete record of his financial status. Thus, the court reasonably concluded that the defendant failed to demonstrate an inability to pay the arrearage payment he was ordered to satisfy at the dissolution proceeding, an obligation that was suspended for only the period of time agreed to in the parties’ postjudgment stipulation.

B

Next, the defendant asserts that the court abused its discretion in ordering that he return his children’s passports to the plaintiff. The following additional facts are relevant to this claim. Over the summer of 2009, the defendant asked the plaintiff for the passports of their two youngest children so he could take the children on a European vacation. The plaintiff, who had physical custody of the children, gave the passports to the defendant and asked for their return following the vacation. Later, the defendant refused to return the passports. In response to a motion, the court ordered the defendant to return the passports within ten days. Eventually, the defendant returned the passports to the plaintiff and appealed from this order.

At the hearing at which the court ruled on the plaintiffs motion for the return of the passports, the court unambiguously rejected the defendant’s contention that the plaintiff, who had physical custody of the children, should not also have custody of the passports because she might refuse to let the defendant use them in the future as a way of thwarting his travel plans with the children. The court rejected this purely speculative rationale, noting that it was not in the plaintiffs interest to interfere with the defendant’s right to visitation and travel with the children. The court concluded that the plaintiff, in her role as the parent with physical custody of the children, should retain custody of the passports. The defendant has not demonstrated that the court’s exercise of discretion in this family matter was unsound or based upon improper considerations, and we reject the claim.

C

The defendant also claims with respect to the order for the return of the passports that the court took no evidence and that if it had, the result of the proceeding would have been different. As with the evidentiary claims in AC 30512, however, the defendant merely makes an assertion without support in the record or in law. We decline to review this claim because the defendant has not briefed the claim beyond making a statement of the claim. It is, therefore, deemed abandoned. See section I D of this opinion; Keating v. Ferrandino, supra, 125 Conn. App. 603-604.

The judgments are affirmed.

In this opinion the other judges concurred.

       The agreement provides in relevant part: “Plaintiff agrees she will continue to accept $4500 as the monthly payments to be made to her until 6/ 6/08, and no additional arrearages with respect to alimony, child support and/or any other payment requirements shall accrue during this time. Neither Plaintiff nor Defendant will seek any modifications of or findings of contempt with respect to monthly alimony, child support or other payments until 6/ 6/08, as long as Defendant continues to pay the agreed $4500 monthly amounts, plus medical expenses as required .... The original alimony and support orders as set forth in the Decision shall be in full force and effect to all monthly payments required by Defendant after the 6/6/08 date . . . .”