text:
    GLENN GORELICK ET AL. v. EMILY MONTANARO ET AL. MICHAEL MONTANARO v. GLENN GORELICK, TRUSTEE, ET AL.
    (AC 30055)
    (AC 30056)
    Beach, Alvord and Pellegrino, Js.

      Argued October 23, 2009
    officially released March 16, 2010

      A. Reynolds Gordon, with whom was Frank A. DeNi-cola, Jr., for the appellant (Glenn Gorelick, named plaintiff in the first case, named defendant in the second case).

      Dennis Gorelick, pro se, the appellant (plaintiff in the first case, defendant in the second case).

      R. Bartley Halloran, with whom was Kenneth J. Bartschi, for the appellee (Michael Montanaro, defendant in the first case, named plaintiff in the second case).

      John R. Bryk, for the appellee (Emily Montanaro, named defendant in the first case, defendant in the second case).
   Opinion

ALVORD, J.

These appeals, by Glenn Gorelick and Dennis Gorelick, are from the judgments rendered in two consolidated actions after a trial to the court. On appeal, the Gorelicks challenge various conclusions reached by the trial court with respect to the distribution of partnership funds and the proceeds from the sale of real estate in connection with the dissolution of a family partnership. We reverse in part the judgments of the trial court.

By way of background, the first action was instituted in November, 1993, by the Gorelicks, as trustees for their minor children, against the defendants Emily Mon-tanaro and Michael Montanaro. The original complaint subsequently was amended to include a third defendant, Wendy Montanaro. The amended complaint alleged, inter alia, wrongful withholding of funds, breach of contract, and waste and mismanagement. The Gorelicks sought an accounting, money damages, specific enforcement of a partnership agreement, the appointment of a receiver of rents and a distribution of partnership funds. The second action was filed in December, 2001, by Michael Montanaro against Glenn Gorelick, trustee; Dennis Gorelick, trustee; and Emily Montanaro and sought a dissolution of the partnership, Boston Avenue Properties, and a partition by sale of real estate located at 10 Boston Avenue in Bridgeport.

The following facts are necessary for the resolution of the claims on appeal. These facts were set forth in a previous opinion of this court, in which we dismissed Glenn Gorelick’s prior appeal because it had not been taken from a final judgment. Gorelick v. Montanaro, 94 Conn. App. 14, 891 A.2d 41 (2006). “In 1977, brothers Michael Montanaro and Richard Montanaro, their mother, Emily Montanaro, and their cousins, Dennis Gorelick and Glenn Gorelick, each were conveyed a one-fifth interest in a parcel of commercial property at 10 Boston Avenue by Emily Montanaro’s mother, Ellen Berty.* ** At oral argument in this court [on the prior appeal], the parties agreed that Dennis Gorelick no longer had any interest in the real estate at the time the second action involved in this appeal was commenced and that Glenn Gorelick, as trustee, owns a 40 percent share of the realty, as reflected on the land records. There is also no dispute among the parties that Michael Montanaro owns 20 percent and Emily Montanaro owns 40 percent of the real estate, as stated on the land records of Bridgeport. In 1979, the original five landowners formed a partnership, known as Boston Avenue Properties, to develop the property and to manage the income derived from the property. The partnership was governed by a partnership agreement.

“Problems between the partners began in the mid-1990s when Berty’s health began to fail, and Emily Mon-tanaro began to care for her and manage her financial affairs. Emily Montanaro became aware that Dennis Gorelick, who, along with Glenn Gorelick, had managed Berty’s affairs to that point, had been fraudulently misappropriating Berty’s money. An action was filed by Emily Montanaro, as executrix of Berty’s estate, in which judgment was rendered in 1996 against Dennis Gorelick for $147,712.06. Another action was filed, in March, 1998, by Emily Montanaro, as executrix, claiming that Dennis Gorelick fraudulently had conveyed assets and seeking to set aside those conveyances in order to collect the judgment she had obtained. See Montanaro v. Gorelick, 73 Conn. App. 319, 807 A.2d 1083 (2002).

“The actions that are the subject of the present appeals were consolidated and tried to the court, D. Brennan, J., in three days in June, 2002. The court reserved decision after conclusion of all of the evidence and ordered posttrial briefs. Judge Brennan subsequently resigned prior to rendering a judgment. The parties stipulated to allow a successor judge, Doherty, J., to render judgment on the basis of the transcript, exhibits, briefs and oral argument.” Gorelick v. Mon-tanaro, supra, 94 Conn. App. 18-20.

The court, Doherty, J., in a memorandum of decision filed March 22, 2004, concluded that Gorelicks failed to prove mismanagement of partnership funds. The court also concluded that the continuation of the partnership was unrealistic because of the “divisiveness, acrimony and mistrust” among the partners. It therefore granted the request of Michael Montanaro to appoint a receiver to wind up the partnership affairs and ordered a partition sale of the Boston Avenue property. Glenn Gorelick filed an appeal from that decision, but this court dismissed it for lack of a final judgment because the trial court had not determined the individual partners’ interests in the partnership and had not issued orders concerning the distribution of the accumulated partnership funds and assets. Gorelick v. Montanaro, supra, 94 Conn. 21-33.

After this court dismissed Glenn Gorelick’s appeal, the court, Doherty, J., issued a memorandum of decision on November 6, 2006, in which it found that the Gorelicks’ attempts to convey their partnership interests to themselves as trustees for the benefit of their children were ineffective and that their interests in the partnership were held as individuals. The court further found that each of the five original members of the partnership was entitled to an equal one-fifth interest in the partnership and that each of the five original members was entitled to a one-fifth share of the net proceeds from the sale of the Boston Avenue real estate. Thereafter, on June 4,2008, the court, Blawie, J., issued a decision in which it directed the receiver to distribute the partnership funds and the proceeds from the sale of the subject real estate to the five original partners in the manner previously determined by Judge Doherty. Subsequently, the Gorelicks, individually and as trustees, filed the present appeals.

On appeal, Dennis Gorelick claims that the court improperly determined that (1) each of the five original partners held a one-fifth interest in the partnership and was entitled to one-fifth of its accumulated income, (2) he, as trustee, was not a partner and was not entitled to accumulated income in that capacity and (3) he failed to prove that the remaining partners accepted him as a trastee partner. Glenn Gorelick has raised identical claims on his own behalf and, in addition, claims that the court improperly (1) denied his motion for a retrial with live testimony, (2) determined that each of the five original partners was entitled to a one-fifth share of the net proceeds from the sale of the Boston Avenue property, (3) determined that the accumulated income from the partnership should be distributed to the partners rather than to the record owners of the real estate and (4) failed to conclude that Emily Montanaro breached her fiduciary duties to the partners by withholding partnership income and charging excessive management fees.

The Gorelicks’ claims on appeal fall into three general categories involving: (1) the denial of Glenn Gorelick’s motion for a retrial with live testimony; (2) the distribution of the partnership funds and the proceeds from the sale of the real estate; and (3) the alleged breach of fiduciary duties by Emily Montanaro. We will address each of these categories in turn after first dismissing in part the appeal filed by Dennis Gorelick.

Dennis Gorelick is a self-represented party. He filed his present appeal in his individual capacity and as a trustee. Dennis Gorelick is not a lawyer. “Any person who is not an attorney is prohibited from practicing law, except that any person may practice law, or plead in any court of this state in his own cause. General Statutes § 51-88 (d) (2). The authorization to appear pro se is limited to representing one’s own cause, and does not permit individuals to appear pro se in a representative capacity.” (Emphasis in original; internal quotation marks omitted.) Lowe v. Shelton, 83 Conn. App. 750, 756, 851 A.2d 1183, cert. denied, 271 Conn. 915, 859 A.2d 568 (2004).

As the trustee of a trust created for the benefit of his daughters, Dennis Gorelick is not representing his “own cause.” His pro se appearance on behalf of the trustee constitutes the unauthorized practice of law in violation of § 51-88. Dennis Gorelick, as a nonlawyer, does not have authority to maintain an appeal on behalf of the trust. Accordingly, we dismiss his appeal with respect to his claims presented on behalf of the trust. See Ellis v. Cohen, 118 Conn. App. 211, 214-16, 982 A.2d 1130 (2009). We now turn to the Gorelicks’ remaining claims.

I

Glenn Gorelick claims that the court, Doherty, J., should have granted the motion for a retrial that he filed after this court’s decision in Gorelick v. Mon-tanaro, supra, 94 Conn. App. 14. Referring to a footnote in that decision, he claims that the court improperly decided the matter without live testimony.

After Judge Brennan resigned following the three day trial to the court, all parties signed a stipulation dated December 23, 2002. At a status conference held on the record on March 14,2003, attorney A. Reynolds Gordon, representing Glenn Gorelick, informed Judge Doherty that a stipulation had been filed with the court authorizing the retrial of the case on the basis of the trial transcripts, exhibits, briefs and oral argument by the parties. The parties assured Judge Doherty that the matter had been extensively and well-briefed, that they did not want atrial de novo and that, given the lengthy litigation, it was in everyone’s best interest to have the matter resolved as quickly as possible. After hearing the parties’ comments, Judge Doherty raised a concern that a reviewing court might conclude that it was improper for him to decide the matter on the basis of recorded testimony and previously submitted exhibits. In response, Gordon directed the court’s attention to paragraph six of the stipulation, which specifically provides that “[t]he parties stipulate to the foregoing provisions and waive any appeal relating to this Court’s authority to decide the cases based upon the trial transcript, exhibits, briefs and oral argument.”*

After Glenn Gorelick appealed from the March 22, 2004 decision and that appeal was dismissed by this court for lack of a final judgment, he filed a motion with the trial court dated March 22, 2006, requesting a hearing to address the issue of whether Judge Doherty should have disapproved the parties’ stipulation. Two days later, by motion dated March 24,2006, Glenn Gore-lick supplemented his prior motion by requesting that the two actions be retried de novo with live testimony. A hearing was held on July 10, 2006, at which time the attorney for Emily Montanaro, in opposing that motion, represented that his client was then eighty-seven years old, in failing health and unable to testify or to come to court.

On November 6, 2006, Judge Doherty issued his memorandum of decision, denying Glenn Gorelick’s motion for a retrial with live testimony. The court concluded that it had decided the cases in conformity with General Statutes § 51-183Í and expressly stated that it had taken into consideration the six steps set forth in Stevens v. Hartford Accident & Indemnity Co., 29 Conn. App. 378, 615 A.2d 507 (1992), when it decided to accept the parties’ written stipulation.

We conclude that this claim of Glenn Gorelick is without merit. Judge Doherty represented that he considered the requisite criteria set forth in Stevens, and there is nothing in the record that would lead us to a contrary conclusion. Moreover, under the circumstances of this case, we cannot conclude that the parties were unable to waive the opportunity to retry the two actions with live testimony. Although Glenn Gorelick now contends that his due process rights are implicated, even constitutional rights may be waived. “As a general rule, both statutory and constitutional rights and privileges may be waived.” Rosado v. Bridgeport Roman Catholic Diocesan Corp., 292 Conn. 1, 57, 970 A.2d 656, cert. denied sub nom. Bridgeport Roman Catholic Diocesan Corp. v. New York Times Co., 558 U.S. 991, 130 S. Ct. 500, 175 L. Ed. 2d 348 (2009).

Further, as evidenced by the record, particularly the assurances of counsel to Judge Doherty, the claimed error was clearly induced. “[A] party cannot take a path at trial and change tactics on appeal.” Moran v. Media News Group, Inc., 100 Conn. App. 485, 501, 918 A.2d 921 (2007). “This court routinely has held that it will not afford review of claims of error when they have been induced. [T]he term induced error, or invited error, has been defined as [a]n error that a party cannot complain of on appeal because the party, through conduct, encouraged or prompted the trial court to make the erroneous ruling. . . . It is well established that a party who induces an error cannot be heard to later complain about that error. . . . This principle bars appellate review of induced nonconstitutional and induced constitutional error. . . . The invited error doctrine rests on the principles of fairness, both to the trial court and to the opposing party.” (Internal quotation marks omitted.) Snowdon v. Grillo, 114 Conn. App. 131, 139, 968 A.2d 984 (2009).

Because Glenn Gorelick signed a stipulation, orally requested the court to decide the cases on the basis of the trial transcripts, exhibits, briefs and oral argument and, through his counsel, assured Judge Doherty that the parties wanted to proceed in this fashion, he cannot now claim that the court should not have decided the matter without live testimony and that it improperly denied his motion for a retrial.

II

We now address the parties’ claims with respect to the distribution of partnership funds and the proceeds from the sale of the commercial real estate located at 10 Boston Avenue in Bridgeport. The court determined that each of the five original partners, Glenn Gorelick, Dennis Gorelick, Michael Montanaro, Emily Montanaro and Richard Montanaro, was entitled to 20 percent of the accumulated income from the partnership, less expenses, and 20 percent of the net proceeds from the sale of the real estate.

We first note that all of the parties agree that Richard Montanaro is not entitled to any distribution of funds from partnership assets, either accumulated income from the partnership or proceeds from the sale of the real estate. It is undisputed that Richard Montanaro had validly conveyed his interest in both the real estate and the partnership to his mother, Emily Montanaro, in March, 1992. None of the parties ever claimed that either transfer violated the terms of the partnership agreement. Gorelick v. Montanaro, supra, 94 Conn. App. 30-31. The parties confirmed this fact at the time of oral argument before this court. Accordingly, the court’s judgment with respect to Richard Montanaro is reversed. We now look to the court’s determination with respect to the interests held by the remaining partners.

A

Accumulated Income From Partnership

The partnership agreement, dated and signed on July 31, 1979, indicates that Glenn Gorelick, Dennis Gore-lick, Michael Montanaro, Emily Montanaro and Richard Montanaro were forming a partnership known as Boston Avenue Properties. The agreement specifically provides that they recently had acquired commercial property located at 10 Boston Avenue and that they had determined “to become co-partners in a business of ownership and development” of that real estate. The agreement further provides that each partner is “equally hable for all obligations, costs and expenses resulting from the purchase, maintenance, development and ultimate disposition” of that real estate and that each partner “shall have [an] equal interest and shall share in all of the aforementioned real estate and all of the net profits and net losses of the partnership, including any depreciation deductions for federal or state tax purposes.”

The partnership agreement expressly restricts the transfer of partnership interests, unless the transfer is made by one partner to another partner. Section four of the agreement provides: “No partner shall during his lifetime, assign, encumber or otherwise dispose of his interest or any part thereof in the partnership, except as provided below . . . (c) . . . [A]ny co-partner may be entitled to transfer by gift or otherwise his or her share to said partner’s parent, child or grandchild (not to spouse), in which event, said successor shall thereupon be an equal co-partner and possess the same status, right and liabilities as possessed by the co-partners herein set forth. Such change in partner and in the status of the partnership shall take effect immediately upon receipt of notice of divestment by [the] partner and acceptance [of] the new partner by all of the remaining partners . . . .” (Emphasis added.)

Pursuant to § 4 (d) of the partnership agreement, when Richard Montanaro conveyed his interest in the partnership to Emily Montanaro in 1992, Emily Mon-tanaro then held a 40 percent interest in the partnership, and the remaining three partners each held a 20 percent interest. Thereafter, in 1993, the Gorelicks, individually and as trustees, gave notice to Emily Montanaro and Michael Montanaro of their intent to transfer their partnership interests to themselves as trustees for the benefit of their children. In 1996, Dennis Gorelick gave notice to Emily Montanaro and Michael Montanaro that he would be transferring his interest as trustee to Glenn Gorelick, trustee for Kira Gorelick. Accordingly, at the time of trial, it was the position of Glenn Gorelick and Dennis Gorelick that Glenn Gorelick, as trustee for Kira Gorelick, held 40 percent of the partnership interest, Emily Montanaro held 40 percent of the partnership interest and Michael Montanaro held 20 percent of the partnership interest.

The court, Doherty, J., in its March 22, 2004 decision, found that the transfers of the partnership shares by Glenn Gorelick and Dennis Gorelick in 1993 and 1996 were in contravention of the terms of the partnership agreement. Section 4 (c) requires notice of divestment by the transferring partner and acceptance of the new partner by all of the remaining partners. The court found that “[w]hile there was some evidence of the intention of [Glenn Gorelick and Dennis Gorelick] to divest themselves by conveying to trustees . . . there was no record of acceptance [of] the new partner by all of the remaining partners.” (Citation omitted.)

Further, the court, Doherty, J., in its November 6, 2006 decision, made the following finding: “The court finds, based on the evidence and testimony, that neither Glenn Gorelick nor Dennis Gorelick held an interest in the partnership as trustees. The purported conveyances to each of them in that capacity did not conform to the terms of the partnership agreement. They were not accepted by all of the other partners in the capacity of trustees. . . . The court . . . finds that, according to the partnership agreement, each is a partner in his individual capacity.” Finally, in its articulation filed July 14, 2009, the court, Doherty, J., found “neither the issuance or acceptance of [K-l tax forms], nor any other conduct, constituted acceptance ‘by behavior or otherwise’ on the part of the remaining parties as required by [section 4 (c)] of the written partnership agreement.”

Glenn Gorelick and Dennis Gorelick challenge the factual findings of the court, claiming that the behavior of the remaining partners clearly indicated that they accepted Glenn Gorelick and Dennis Gorelick as partners in their capacities as trustees. The clearly erroneous standard is the well settled standard for reviewing a trial court’s factual findings. “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.) Porter v. Morrill, 108 Conn. App. 652, 664, 949 A.2d 526, cert. denied, 289 Conn. 921, 958 A.2d 152 (2008).

We cannot conclude that the court’s findings were clearly erroneous. Although Glenn Gorelick and Dennis Gorelick refer to certain conduct of Emily Montanaro and Michael Montanaro as being evidence of such acceptance, none of the referenced behavior constitutes acceptance as a matter of law, and the court was free to conclude otherwise. The court, in its decision, indicated that it determined that there had been no acceptance on the basis of “the evidence and testimony . . . .” The court did not specify what evidence and testimony led to that determination, and neither Glenn Gorelick nor Dennis Gorelick requested an articulation addressed to that aspect of the decision. During oral argument, there was some speculation that the court may have concluded that such an acceptance had to be in writing but, again, the record is inadequate to review the claim on that basis.

It is clear that there was no written acceptance of Glenn Gorelick and Dennis Gorelick as trustees by the remaining partners. It is also clear that the partners were experiencing some interpersonal difficulties among themselves, as evidenced by the first action instituted by Glenn Gorelick and Dennis Gorelick against Emily Montanaro and Micheál Montanaro in November, 1993, in which Wendy Montanaro was later cited in as a defendant. The first transfer by Glenn Gorelick and Dennis Gorelick to themselves as trustees occurred sometime after May, 1993. The second transfer by Dennis Gorelick, as trustee, to Glenn Gorelick, as trustee, was in 1996. The relationship among the partners clearly had deteriorated by that point in time. The court reasonably could have concluded that, given the hostility that existed, there was no acceptance.

We conclude that Richard Montanaro is no longer a partner of Boston Avenue Properties by virtue of the transfer of his interest in the partnership and the real estate to Emily Montanaro in 1992. As determined by the trial court, the purported transfers by Glenn Gore-lick and Dennis Gorelick to themselves as trustees in 1993 and 1996 were contrary to the terms of the partnership agreement and were, therefore, ineffective. Glenn Gorelick and Dennis Gorelick continue to hold their partnership interests as individuals. Accordingly, the partnership funds, less expenses, are to be distributed in accordance with the partnership interests held by the current partners, i.e., 20 percent to Glenn Gorelick, 20 percent to Dennis Gorelick, 20 percent to Michael Montanaro and 40 percent to Emily Montanaro.

B

Net Proceeds From Sale of Real Estate

Glenn Gorelick next claims that the court improperly determined that each of the five original partners was entitled to share equally in the net proceeds from the sale of the commercial property at 10 Boston Avenue. He argues that the proceeds should be distributed to the record holders of the real estate as reflected in the Bridgeport land records. It is undisputed that the land records indicate that Glenn Gorelick, as trustee, owns a 40 percent share of the realty, Emily Montanaro owns a 40 percent share of the realty and Michael Montanaro owns a 20 percent share of the realty.

As previously noted, the real estate was conveyed to Emily Montanaro, Michael Montanaro, Richard Mon-tanaro, Dennis Gorelick and Dennis Gorelick, trustee for Glenn Gorelick in 1977. The partnership was formed after the acquisition of the property. In 1979, the parties signed the partnership agreement for Boston Avenue Properties. Although it is clear from the agreement itself that the primary purpose for the partnership’s existence was the development of 10 Boston Avenue, title to the realty was not transferred to the partnership. The individual partners remained the record owners of the real estate.

Nevertheless, the partnership agreement and the subsequent actions of the partners treated the real estate as an asset of the partnership. The July 31,1979 agreement states that the parties were partners “in a business of ownership and development” of the real estate, that the parties are equally hable for costs and expenses resulting from “the purchase, maintenance, development and ultimate disposition of that real estate,” that the parties “shall have [an] equal interest and shall share in all of the aforementioned real estate” and that no partner can assign or otherwise dispose of his or her “interest or any part thereof in the partnership” except as otherwise provided in the agreement. (Emphasis added.) Furthermore, the management agreement, also dated and signed July 31, 1979, in which Berty was designated the managing agent of the property, expressly states that “the partnership [previously identified as Boston Avenue Properties] owns and operates certain rental properties located at 10 Boston Avenue” in Bridgeport. (Emphasis added.)

The tenant of the real estate, Town Fair Tire Center of North Avenue, Inc., subsequently Town Fair Tire Centers, Inc., leased the property from Boston Avenue Properties. That lease was amended from time to time, and the third amendment to that lease, dated November 16, 1992, also identified the lessor as Boston Avenue Properties, a general partnership consisting of Glenn Gorelick, Dennis Gorelick, Emily Montanaro and Michael Montanaro.

At the time the partnership was formed in 1979, Connecticut’s Uniform Partnership Act, General Statutes §§ 34-39 through 34-81, was in effect, having been adopted by the General Assembly in 1961. Public Acts 1961, No. 158. The revised Uniform Partnership Act, General Statutes §§ 34-300 through 34-399; see Public Acts 1995, No. 95-341 (P.A. 95-341); became effective July 1, 1997. Section 34-399 provides: “Sections 34-300 to 34-399, inclusive, do not affect an action or proceeding commenced or right accrued before July 1, 1997. ”

Under Connecticut’s prior and current Uniform Partnership Act, partnership realty is considered personalty with respect to any individual partner’s rights therein. Wheeler v. Polasek, 21 Conn. App. 32, 34, 571 A.2d 129 (1990); General Statutes § 34-347; Rev. Unif. Partnership Act of 1997, § 502, comment, 6 U.L.A., Pt. 1, p. 156 (2001) (“[t]he partner’s transferable interest is deemed to be personal property, regardless of the nature of the underlying partnership assets”).

Even though the realty was not held in the name of the partnership, it nevertheless may have been a partnership asset. Whether real estate held in the names of individual partners is a partnership asset is a question of fact. See Mathews v. Wosek, 44 Mich. App. 706, 714-15, 205 N.W.2d 813 (1973). Under the act in effect prior to 1997, “[a]ll property originally brought into the partnership stock or subsequently acquired by purchase or otherwise, on account of the partnership, is partnership property.” General Statutes § 34-46 (1) (repealed by P.A. 95-341, § 57). Under the current act, as under the prior act, it is the intent of the partners that determines whether property is partnership property. See General Statutes § 34-316; Rev. Unif. Partnership Act of 1997, supra, § 204, comment (3), 6 U.L.A., Pt. 1, p. 98 (“Ultimately, it is the intention of the partners that controls whether property belongs to the partnership or to one or more of the partners in their individual capacities, at least as among the partners themselves. [The Revised Uniform Partnership Act] sets forth two rebuttable presumptions that apply when the partners have failed to express their intent.”).

We cannot discern from the court’s opinion whether it concluded that the real estate was partnership property, subject to distribution in accordance with the partnership interests, or whether the court concluded that the real estate had been conveyed in contravention of the partnership agreement. As previously noted, § 4 of the agreement specifically provides that a partner cannot “assign ... or otherwise dispose of his interest or any part thereof in the partnership” except as provided in the agreement. Section 4 (c) recognizes a transfer to a partner’s child only upon notice of divestment and acceptance of the new partner by all of the remaining partners. The court concluded that the remaining partners had not accepted Glenn Gorelick and Dennis Gore-lick as trustees. It is possible that the court deemed those transfers of the real estate to be contrary to the terms of the partnership agreement and therefore ineffective.

The court’s November 6, 2006 memorandum of decision simply states: “As previously ordered, a receiver shall be appointed for the express purpose of winding down the business of [Boston Avenue Properties] and for the distribution to the partners of their respective one-fifth (1/5) shares of the net proceeds of the sale of the commercial real property.” The court does not indicate its underlying reasons or rationale for distributing the proceeds by partnership interest rather than by record title. Glenn Gorelick did not request an articulation. It is the appellant’s burden to furnish this court with an adequate record to review his claim on appeal. See Practice Book § 60-5. The record is inadequate for review of this claim.

Glenn Gorelick has failed to demonstrate that the court’s determination was improper, except for its order with respect to Richard Montanaro. As previously discussed in part II A of this opinion, Richard Mon-tanaro is no longer a partner of Boston Avenue Properties by virtue of the transfer of his interest in the partnership and the real estate to Emily Montanaro in 1992. Accordingly, the net proceeds from the sale of the commercial real estate are to be distributed as follows: 20 percent to Glenn Gorelick, 20 percent to Dennis Gorelick, 20 percent to Michael Montanaro and 40 percent to Emily Montanaro.

Ill

The final claim of Glenn Gorelick is that the court improperly failed to conclude that Emily Montanaro breached her fiduciary duties to the partners by withholding partnership income and charging excessive management fees. Specifically, he argues that the court “erroneously placed the burden of proof’ on him and Dennis Gorelick and failed to recognize Emily Mon-tanaro’s “fiduciary obligations and the self-dealing nature of her activities.”

Although the court recognized that Emily Montanaro owed a fiduciary duty to each of the partners to the extent that she assumed the role of managing agent of the commercial property, the court concluded that Glenn Gorelick and Dennis Gorelick failed to demonstrate that she improperly withheld funds or that she mismanaged the property. In reaching that determination, the court noted: “The record and exhibits show that over the years in question there were numerous attempts by all the partners to reach an agreement as to the appropriate way to distribute the accumulated funds of the partnership, but no consensus could be reached which would authorize or compel Emily Mon-tanaro to make such disbursement. One of the obvious impediments to any such agreement was the pendency of the lawsuit commenced by Glenn Gorelick and Dennis Gorelick. That impasse summed up and illustrated the total lack of cooperation required to permit the partnership to survive and function.” With respect to her management fees, the court found that they were not illegal or improper under the partnership agreement, common law or statutory law.

On appeal, Glenn Gorelick emphasizes that a fiduciary must prove fair dealing by clear and convincing evidence. He also claims that the court improperly placed the burden of proof on the Gorelicks to demonstrate that the actions of Emily Montanaro were unreasonable. “Proof of a fiduciary relationship imposes a twofold burden on the fiduciary. Once a fiduciary relationship is found to exist, the burden of proving fair dealing shifts to the fiduciary. Furthermore, the standard of proof for establishing fair dealing is not the ordinary fair preponderance of the evidence standard. The fiduciary is required to prove fair dealing by clear and convincing evidence.” Stuart v. Stuart, 112 Conn. App. 160, 171 n.5, 962 A.2d 842, cert. granted on other grounds, 290 Conn. 920, 966 A.2d 237 (2009).

It is clear from the court’s opinion, however, that it assessed the evidence and found no wrongdoing on the part of Emily Montanaro. Having failed to meet that threshold, it is questionable as to whether those claims ever reached the point where the burden shifted to the fiduciary. See id., 187. To the extent that the court determined that the burden did shift, we conclude that the court applied the proper standard of proof. “When a trial court in a civil matter requiring proof by clear and convincing evidence fails to state what standard of proof it has applied, a reviewing court will presume that the correct standard was used.” Kaczynski v. Kaczynski, 294 Conn. 121, 130-31, 981 A.2d 1068 (2009).

Having concluded that the court used the proper standard of proof, we now determine whether its factual findings were clearly erroneous. There is evidence in the record, both testimonial and documentary, that supports the court’s findings. We therefore cannot conclude that the court’s findings were clearly erroneous.

The appeal in AC 30055 is dismissed with respect to the claims by Dennis Gorelick on behalf of Dennis Gorelick as trustee; in AC 30055 and AC 30056, the judgments are reversed only as to the award to Richard Montanaro of partnership funds and proceeds from the sale of the commercial real estate and the cases are remanded for further proceedings according to law. The judgments are affirmed in all other respects.

In this opinion the other judges concurred.

       Wendy Montanaro temporarily owned an interest in the real estate involved in these appeals. On April 15, 1995, Emily Montanaro transferred her interest in the real estate to Wendy Montanaro. On October 18, 1996, Wendy Montanaro conveyed that interest in the real estate back to Emily Montanaro.

       The amended complaint also alleged unfair and deceptive trade practices, but that claim subsequently was withdrawn.

       After the two actions were consolidated and tried to the court, D. Brennan, J., but before the court, Doherty, J., issued its memorandum of decision on March 22, 2004, the court, Doherty, J., ordered that the complaints be amended to reflect that the Gorelicks were prosecuting and defending the actions in their individual capacities and in their capacities as trustees.

       “For reasons concerning creditors, Glenn Gorelick’s interest was given in trust to Dennis Gorelick. The court [Doherty, J.] stated that Richard Montanaro transferred his interest in trust to his mother, Emily Montanaro. The deed that was recorded on the land records, however, indicates that Richard Montanaro’s interest was not transferred in trust to Emily Montanaro, but was transferred in fee on March 9,1992.” Gorelick v. Montanaro, supra, 94 Conn. App. 18 n.8.

       “On May 28, 1993, Dennis Gorelick transferred the share of the realty that he previously had held as trustee for Glenn Gorelick to Glenn Gorelick, trustee for Kira Gorelick, Glenn Gorelick’s daughter. Subsequently, Dennis Gorelick transferred his share to Dennis Gorelick, trustee for his daughters, Elizabeth and Margaret, and subsequently . . . [Dennis Gorelick, as trustee, transferred that share] to Glenn Gorelick, trustee for Kira Gorelick.” Gorelick v. Montanaro, supra, 94 Conn. App. 18 n.9.

       “The partnership agreement provided that the partnership’s assets consisted of each partner’s interest in the subject property, although ownership of the property was not transferred to the partnership. Further, Berty was to be the managing agent for the property and was to receive all income derived from the property.” Gorelick v. Montanaro, supra, 94 Conn. App. 19 n.11.

       “The court [Doherty, J.], in its memorandum of decision, stated that ‘there has not been a more acrimonious, less trusting or less cooperative partnership since the Axis of World War n.’ ” Gorelick v. Montanaro, supra, 94 Conn. App. 19 n.12.

       “That action failed because the statute of limitations had run.” Gorelick v. Montanaro, supra, 94 Conn. App. 20 n.13.

       At the time of oral argument before this court, Glenn Gorelick withdrew his claims that the trial court improperly (1) made a finding that he had unclean hands, (2) ordered a sale by auction rather than a private sale of the real estate, (3) ordered a sale by auction prior to a final determination of his interests in the accumulated income and real property and (4) granted the motion of Emily Montanaro and Michael Montanaro for an interim distribution of the accumulated income. By letter dated November 12,2009, Dennis Gorelick stated that the issue of “unclean hands” had not been resolved with respect to him but that he also was withdrawing the remaining issues.
      The issue of unclean hands is irrelevant. The court, Doherty, J., in its March 22, 2004 memorandum of decision, denied the Gorelicks’ request for an accounting in view of the plaintiffs unclean hands. The court did not identify which plaintiff had unclean hands. Moreover, an accounting, the court noted, would only have merit if the partnership was viable; the court concluded that it should be dissolved because its continued existence would only “perpetuate the divisiveness, acrimony and mistrust” among the partners.
      In a subsequent articulation by the court, it indicated that it was referring to Dermis Gorelick as the plaintiff with unclean hands because of the judgment previously rendered against him for the fraudulent misappropriation of Berfy’s funds. Although Dennis Gorelick disagrees with that judgment, it was part of the evidence presented at trial. In any event, the trial court’s finding of unclean hands with respect to the request for an accounting is not relevant to any of the issues that we are addressing on appeal.

       The subject footnote provides in part: “Because we lack subject matter jurisdiction, we are without the power to resolve the question of whether stipulations of the parties can, as a matter of law, circumvent the procedures required by [General Statutes] § 51-183f, as provided in Stevens [v. Hartford Accident & Indemnity Co., 29 Conn. App. 378, 615 A.2d 507 (1992)], when the case hinges on questions of credibility.” Gorelick v. Montanaro, supra, 94 Conn. App. 22 n.14.

       Two months later, at the time of oral argument before Judge Doherty on the two consolidated actions, the court again referred to the parties’ stipulation. After summarizing its provisions, Judge Doherty stated: “And I’m going to have the benefit of those transcripts, which is an awkward way to hear a case; but among other things, that’s been expressly provided, there would be no appeal from this court’s authority to decide the matters without the usual benefit of having the witnesses testify before me.” At the conclusion of the parties’ closing arguments, Judge Doherty stated: “I want to make sure it’s clear on the record that this court’s being asked to review the evidence and testimony that was offered before Judge Brennan without the benefit of having the witnesses appear before it, and there’s a stipulated agreement that that would not be the basis of an appeal, per se, that alone.”

       General Statutes § 51-183Í provides: “If the term of office of any judge of the Superior Court expires during the pendency of any proceeding before him, or if any judge of the Superior Court is retired because of a disability, dies or resigns during the pendency of any proceeding before him, any other judge of that court, upon application, shall have power to proceed therewith as if the subject matter had been originally brought before him.”

       In Stevens, this court held that “upon the death, disability or resignation of a judge of the Superior Court during the pendency of a trial or hearing to the court, a successor judge should take the following steps pursuant to the authority granted by § 51-183Í: (1) become familiar with the entire existing record, including, but not necessarily limited to, transcripts of all testimony and all documentary evidence previously admitted; (2) determine, on the basis of such record and any further proceedings as the court deems necessary, whether the matter may be completed without prejudice to the parties; (3) if the court finds that the matter may not be completed without prejudice to the parties it should declare a mistrial, but if the court finds that the matter may be completed without prejudice to the parties then; (4) upon request of any party, or upon the court’s own request, recall any witness whose testimony is material and disputed and who is available to testify without due burden; (5) take any other steps reasonably necessary to complete the proceedings; and (6) render a decision based on the successor judge’s own findings of fact and conclusions of law.” Stevens v. Hartford Accident & Indemnity Co., supra, 29 Conn. App. 386.

       “An induced error, or invited error, is an error that a party cannot complain of on appeal because the party, through conduct, encouraged or prompted the trial court to make the erroneous ruling. ... By comparison, a waiver is [t]he voluntary relinquishment or abandonment—express or implied—of a legal right or notice.” (Citation omitted; internal quotation marks omitted.) State v. Fabricators, 281 Conn. 469, 482 n.18, 915 A.2d 872 (2007).

       “The doctrine also has been applied in appeals in which appellants challenged the trial court’s application of legal principles or procedures that they requested be applied at trial.” State v. Maskiell, 100 Conn. App. 507, 515, 918 A.2d 293, cert. denied, 282 Conn. 922, 925 A.2d 1104 (2007).

       Section 4 (d) of the partnership agreement provides: “Any co-partner may receive the interest of any other co-partner by gift or otherwise, in which event the receiving co-partner shall have added shares and proportionate voting powers.”

       See footnote 16 of this opinion.

       It is the appellants’ responsibility to provide an adequate record for review. See Practice Book § 60-5.

       The argument by Glenn Gorelick and Dennis Gorelick that Michael Montanaro and Emily Montanaro are estopped from claiming that Glenn Gorelick and Dennis Gorelick, as trustees, are entitled to distributions of partnership funds because of judicial admissions made by Michael Montanaro and Emily Montanaro is without merit. For a judicial admission to be binding, it must be “clear, deliberate and unequivocal.” (Internal quotation marks omitted.) Birchard v. New Britain, 103 Conn. App. 79, 85, 927 A.2d 985, cert. denied, 284 Conn. 920, 933 A.2d 721 (2007). The judicial admissions that Glenn Gorelick and Dennis Gorelick claim are binding in this case do not meet that standard.

       As previously noted, the first action was instituted by Glenn Gorelick and Dennis Gorelick in November, 1993. The second action was filed by Michael Montanaro in December, 2001.


source: Caselaw Access Project

author: FLYNN, C. J.

license: Public Domain

text:
    KRISTY WILCOX ET AL. v. DANIEL S. SCHWARTZ ET AL.
    (AC 30682)
    Flynn, C. J., and Gruendel and Stoughton, Js.

      Argued December 10, 2009
    officially released March 16, 2010

      Steven J. Errante, with whom, on the brief, was Marisa A. Bellair, for the appellants (plaintiffs).

      FrankH. Santoro, with whom, on the brief, was Jonathan A. Kocienda, for the appellees (defendants).
   Opinion

FLYNN, C. J.

In this medical malpractice case, the plaintiffs, Kristy Wilcox and Timothy Wilcox, appeal from the judgment of the trial court dismissing their complaint against the defendants, Daniel S. Schwartz, a general surgeon, and CBS Surgical Group, P.C., on the ground that the written opinion accompanying the complaint was insufficiently detailed to meet the requirements of General Statutes § 52-190a (a). On appeal, the plaintiffs claim that the court improperly dismissed the complaint because, despite the court’s conclusion to the contrary, the written opinion contained sufficient detail to satisfy the statute. We agree with the plaintiffs and, therefore, reverse the judgment of the trial court.

The plaintiffs’ complaint alleged that on March 12, 2006, Wilcox underwent a laparoscopic cholecystec-tomy performed by Schwartz for treatment of gallbladder disease. The complaint further alleged that Schwartz performed the procedure negligently, causing Wilcox to suffer “severe, painful and permanent injuries.” The plaintiffs claimed that Schwartz breached the applicable standard of care in that he: (1) “failed to assure the adequate and accurate identification of [Wilcox’s] internal anatomy prior to proceeding with the laparoscopic cholecystectomy,” (2) “failed to prevent injury to [Wilcox’s] biliary structures during the laparos-copic cholecystectomy” and (3) “failed to accurately document the surgical procedure . . . .”

On June 9, 2008, the plaintiffs commenced their action by service of process on the defendants. The two count complaint stated claims sounding in medical negligence and loss of spousal consortium, respectively. Attached to the complaint was a certificate of reasonable inquiry, executed by the plaintiffs’ attorney and a written and signed medical opinion. The body of the opinion states in its entirety: “I have reviewed the relevant records and information that were provided to me with regard to Kristy Wilcox.

“I can conclude that, to a reasonable degree of medical probability, there are deviations from the applicable standards of care pertaining to the care and treatment of Kristy Wilcox provided by Daniel S. Schwartz, M.D. and that the care and treatment provided by Daniel S. Schwartz, M.D. was not provided in a manner consistent with the standards of care that existed among general surgeons at the time of the alleged incident.

“Specifically Daniel S. Schwartz, M.D. failed to prevent injury to Kristy Wilcox’s biliary structures during laparoscopic [gallbladder] surgery and failed to accurately document the surgical procedure of March 12, 2006. As a result of Dr. Schwartz’s negligent treatment, Kristy Wilcox sustained severe, painful and permanent injuries.

“My opinions are based upon my education, training and experience as a physician, and my examination of Kristy Wilcox’s medical records.”

On August 6, 2008, the defendants filed a motion to dismiss the complaint. The ground for the motion was that the plaintiffs’ written opinion was not detailed enough to satisfy the requirements of § 52-190a (a). Specifically, the defendants argued that “the opining physician simply provides a conclusory statement of negligence, and fails to provide an opinion as to how the defendants were negligent in their care of [Wilcox], i.e., how the defendants deviated from the standard of care.” (Emphasis in original.) In a memorandum of decision filed December 29, 2008, the court granted the defendants’ motion and dismissed the complaint pursuant to § 52-190a (c), concluding that the written opinion lacked sufficient detail for the purposes of § 52-190a (a). This appeal followed.

We set forth initially our standard of review. “When the facts relevant to an issue are not in dispute, this court’s task is limited to a determination of whether, on the basis of those facts, the trial court’s conclusions of law are legally and logically correct.” (Internal quotation marks omitted.) Tellar v. Abbott Laboratories, Inc., 114 Conn. App. 244, 249, 969 A.2d 210 (2009). We afford plenary review to claims requiring statutory interpretation. Southwick at Milford Condominium Assn., Inc. v. 523 Wheelers Farm Road, Milford, LLC, 294 Conn. 311, 318, 984 A.2d 676 (2009). “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . 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.) Id., 318-19.

Our analysis begins with the pertinent language of the statute. Section 52-190a (a) provides in relevant part that the claimant in a medical malpractice action “shall obtain a written and signed opinion of a similar health care provider, as defined in [General Statutes §] 52-184c . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion. . . .” Enacted originally as part of the Tort Reform Act of 1986; see Public Acts 1986, No. 86-338, § 12; the purpose of § 52-190a is to “inhibit a plaintiff from bringing an inadequately investigated cause of action, whether in tort or in contract, claiming negligence by a health care provider.” Bruttomesso v. Northeastern Connecticut Sexual Assault Crisis Services, Inc., 242 Conn. 1, 15, 698 A.2d 795 (1997). The statute originally required a plaintiff to conduct “a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the [plaintiff]” and to document this inquiry by filing a certificate “that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant.” General Statutes (Rev. to 1987) § 52-190a (a). This certificate requirement, which remains in the current revision of the statute, “serves as an assurance to a defendant that a plaintiff has in fact made a reasonable precomplaint inquiry giving him a good faith belief in the defendant’s negligence.” LeConche v. Elligers, 215 Conn. 701, 711, 579 A.2d 1 (1990).

The requirement at issue in the present case—the written opinion—was introduced into the statute by amendment in 2005. See Public Acts 2005, No. 05-275, § 2 (a). Section 52-190a (a) now requires claimants, in order to “show the existence of . . . good faith,” to obtain “a written and signed opinion of a similar health care provider, as defined in section 52-184c . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion. ...” The failure to obtain and file the written opinion is grounds for the dismissal of the action. General Statutes § 52-190a (c).

Neither this court nor our Supreme Court has decided the precise question raised by the present case: whether a written opinion submitted by a claimant pursuant to § 52-190a (a) is sufficiently detailed for the purposes of the statute. However, in the recent case of Dias v. Grady, 292 Conn. 350, 972 A.2d 715 (2009), the Supreme Court considered the substantive requirements of the written opinion. In Dias, the defendants argued that because the written opinion required by § 52-190a (a) is to demonstrate that there appears to be evidence of medical negligence, the opinion must state that the defendant’s breach of the standard of care caused the plaintiffs injuries, causation being an element of a cause of action in negligence. Id., 353-54. After reviewing the history of the statute, the court concluded that “the phrase ‘medical negligence,’ as used in § 52-190a (a), means breach of the standard of care and was not intended to encompass all of the elements of a cause of action for negligence.” Id., 359.

Following Dias, then, it is clear that in order to fulfill the requirement of § 52-190a (a) and to provide assurance that “there appears to be evidence of medical negligence,” a claimant’s written opinion from a similar health care provider need not address the issue of causation. Further, the opinion must indicate that there appears to be evidence of a breach of the standard of care. With this in mind, we turn to the opinion in the present case.

The opinion first states the author’s conclusion, “to a reasonable degree of medical probability,” that there were “deviations from the applicable standards of care” by Schwartz and that the care and treatment provided to Wilcox by Schwartz “was not provided in a manner consistent with the standards of care that existed among general surgeons at the time of the alleged incident.” The opinion continues: “Specifically, Daniel S. Schwartz, M.D. failed to prevent injury to Kristy Wilcox’s biliary structures during laparoscopic [gallbladder] surgery and failed to accurately document the surgical procedure of March 12, 2006.” Thus, the structure of the document reveals the author’s statement of the prevailing standard of care: protecting the biliary structures during laparoscopic gallbladder surgery. It is this standard of care, the author opines, that Schwartz breached in performing the surgery on Wilcox.

We believe the opinion is sufficiently detailed to satisfy the requirements of § 52-190a (a). It suffices to notify the reader that a similar health care provider is of the opinion that the medical negligence consisted of a failure to protect Wilcox’s bile ducts from injury during surgery. The purpose of the statute is to discourage frivolous lawsuits against health care providers. See LeConche v. Elligers, supra, 215 Conn. 710. One of the mechanisms introduced in the amendments to the statute of 2005 was the written opinion requirement. The ultimate purpose of this requirement is to demonstrate the existence of the claimant’s good faith in bringing the complaint by having a witness, qualified under General Statutes § 52-184c, state in written form that there appears to be evidence of a breach of the applicable standard of care. So long as the good faith opinion sufficiently addresses the allegations of negligence pleaded in the complaint, as this opinion does, the basis of the opinion is detailed enough to satisfy the statute and the statute’s purpose. The person rendering this opinion is not required by § 52-190a (a) to be the expert witness on medical negligence to be used at the time of trial by the plaintiff. Lack of such a statutory requirement that the good faith expert also be used at trial, evinces a legislative intent that the opinion’s detail need not be as exhaustive as that of a trial expert on medical negligence disclosed under the provisions of Practice Book § 13-4 (b) (1) and (2).

Here, the plaintiffs’ opinion fulfills the purpose of the requirement. The complaint alleges only one specification of negligence pertaining to the actual performance of the surgery: that Schwartz “failed to prevent injury to [Wilcox’s] biliary structures during the laparoscopic cholecystectomy.” The defendants have been given sufficient notice that a similar health care provider* ***** is willing to state his opinion that the standard of care was breached during this surgical procedure. The defendants will have the opportunity to gather more information during discovery of any medical expert the plaintiffs plan to use at trial.

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

In this opinion the other judges concurred.

       For the purposes of this opinion, we refer to Kristy Wilcox and Timothy Wilcox collectively as the plaintiffs and to Kristy Wilcox individually as Wilcox.

       General Statutes § 52-190a (a) provides in relevant part: “No civil action or apportionment complaint shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action or apportionment complaint has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint, initial pleading or apportionment complaint shall contain a certificate of the attorney or party filing the action or apportionment complaint that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant or for an apportionment complaint against each named apportionment defendant. To show the existence of such good faith, the claimant or the claimant’s attorney, and any apportionment complainant or the apportionment complainant’s attorney, shall obtain a written and signed opinion of a similar health care provider, as defined in section 52-184e, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion. . . .” (Emphasis added.)

       The plaintiffs also claim on appeal that dismissal of a complaint for failure to include a sufficiently detailed medical opinion letter is neither authorized nor required by § 52-190a. Because we conclude that the plaintiffs’ written opinion was sufficiently detailed for the purposes of the statute, we do not reach this claim.

       The plaintiffs previously had filed, on March 4, 2008, a petition for a ninety day extension of the statute of limitations pursuant to § 52-190a (b). The court granted the petition.

       General Statutes § 52-190a (c) provides: “The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action.”

       Practice Book § 13-4 (b) provides in relevant part: “A party shall file with the court and serve upon counsel a disclosure of expert witnesses which identifies the name, address and employer of each person who may be called by that party to testify as an expert witness at trial, whether through live testimony or by deposition. In addition, the disclosure shall include the following information:
      “(1) Except as provided in subdivision (2) of this subsection, the field of expertise and the subject matter on which the witness is expected to offer expert testimony; the expert opinions to which the witness is expected to testify, and the substance of the grounds for each such expert opinion. Disclosure of the information required under this subsection may be made by making reference in the disclosure to, and contemporaneously producing to all parties, a written report of the expert witness containing such information.
      “(2) If the witness to be disclosed hereunder is a health care provider who rendered care or treatment to the plaintiff, and the opinions to be offered hereunder are based upon that provider’s care or treatment, then the disclosure obligations under this section may be satisfied by disclosure to the parties of the medical records and reports of such care or treatment. A witness disclosed under this subsection shall be permitted to offer expert opinion testimony at trial as to any opinion as to which fair notice is given in the disclosed medical records or reports. Expert testimony regarding any opinion as to which fair notice is not given in the disclosed medical records or reports shall not be permitted unless the opinion is disclosed in accordance with subdivision (1) of subsection (b) of this section.”

       In their oral argument before this court, the defendants claimed that the written opinion also is insufficient because it does not contain any information about the author’s qualifications as a similar health care provider. We decline to address this claim, as it was neither raised before nor addressed by the trial court and, therefore, is not properly at issue in the present appeal.


author: ROBINSON, J.

text:
    TODD TAYLOR v. JILL TAYLOR
    (AC 30328)
    Beach, Robinson and Peters, Js.

      Argued October 13, 2009
    officially released March 16, 2010

      Chris R. Nelson, for the appellant (plaintiff).

      William H. Cashman, for the appellee (defendant).
   Opinion

ROBINSON, J.

In this postjudgment marital dissolution action, the plaintiff, Todd Taylor, appeals from the judgment of the trial court. On appeal, the plaintiff claims that the court improperly applied (1) General Statutes § 46b-56d by permitting the defendant, Jill Taylor, to relocate with their minor child to Sea Cliff, New York, and (2) General Statutes § 46b-62 by awarding the defendant attorney’s fees to defend the plaintiffs appeal. We affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history. The parties were married on August 8, 1996. On January 15, 2003, the court rendered judgment dissolving the parties’ marriage based on a separation agreement executed by the parties. The parties have one minor child who was bom on April 4, 1999. The dissolution agreement provided that the parties share joint legal custody of their minor child. On April 28, 2004, the defendant filed a motion for modification of custody, modification of the parenting access plan and child support. On May 5, 2005, the court awarded the defendant sole custody of the parties’ minor child. In this same order, the plaintiff was given visitation rights with the minor child on alternating weekends and Tuesday nights.

On April 14, 2008, the defendant filed a motion to relocate from Guilford, Connecticut to Long Island, New York, with the parties’ minor child. As an accompaniment to this motion, the defendant filed a motion to modify visitation in accordance with the court’s ruling on her motion to relocate. On August 25,2008, following a three day hearing regarding the motions, the court issued an oral decision granting the motion to relocate and modifying the visitation schedule. The only modification to the visitation schedule was the elimination of the plaintiffs overnight visit with the parties’ minor child during the week because the distance would make it impracticable. The court, however, allowed the plaintiff, upon twenty-four hours notice, to visit the parties’ minor child in Sea Cliff on either Tuesday or Wednesday nights. The court ordered that its decision be effective immediately and not be stayed pending appeal. The plaintiff then filed this appeal in response to the relocation and modification of visitation order.

On September 26, 2008, the defendant filed a motion for counsel fees, requesting that the plaintiff pay the attorney’s fees that she would incur as a result of defending this appeal. On October 14, 2008, the court granted the motion and ordered the plaintiff to pay $15,000, within thirty days. On November 3, 2008, the plaintiff amended this appeal to include the court’s order requiring the plaintiff to pay the defendant’s attorney’s fees. The appeal stayed the order to pay attorney’s fees, and on November 12, 2008, the defendant filed a motion for relief from stay. On December 16, 2008, the court granted the motion because the court found that the plaintiff was not credible “as to the extent of his poor finances.” Additional facts will be set forth as necessary.

I

The plaintiff first claims that the court abused its discretion in determining that the defendant had met her burden of proof under § 46b-56d to relocate with the parties’ minor child. Specifically, the plaintiff argues that the defendant did not seek relocation for a legitimate purpose but, rather, to obstruct the plaintiffs relationship with the parties’ minor child. Further, the plaintiff contends that even if, arguendo, the defendant’s motivation for seeking relocation was legitimate, Sea Cliff was not a reasonable place to move to satisfy her purpose for relocating. Finally, the plaintiff urges that, taking into account the factors set forth in § 46b-56d (b), the relocation was not in the best interest of the parties’ minor child. We disagree.

“Our standard of review of a trial court’s decision regarding custody, visitation and relocation orders is one of abuse of discretion.” (Internal quotation marks omitted.) Lederle v. Spivey, 113 Conn. App. 177, 185, 965 A.2d 621, cert. denied, 291 Conn. 916, 970 A.2d 728 (2009). “It is within the province of the trial court to find facts and draw proper inferences from the evidence presented.” (Internal quotation marks omitted.) Payton v. Payton, 103 Conn. App. 825, 829, 930 A.2d 802, cert. denied, 284 Conn. 934, 935 A.2d 151 (2007). Further, “[t]he trial court has the opportunity to view the parties first hand and is therefore in the best position to assess the circumstances surrounding a dissolution action, in which such personal factors as the demeanor and attitude of the parties are so significant.” (Internal quotation marks omitted.) Lederle v. Spivey, supra, 186. Similarly, in a postjudgment relocation case following a dissolution of marriage action, the court is privy to the history of the case, the parties’ respective situations and how the parties interact with one another. Therefore, “[w]hen reviewing a decision for an abuse of discretion, every reasonable presumption should be given in favor of its correctness.” (Internal quotation marks omitted.) Payton v. Payton, supra, 829.

In 2006, the legislature enacted Public Acts 2006, No. 06-168, codified as § 46b-56d, which sets out the analysis a court is to apply when deciding a postjudgment motion to relocate with a couple’s minor child.* Section 46b-56d adopted the shift in the burden of proof to the relocating parent set forth in Ireland v. Ireland, 246 Conn. 413, 425, 717 A.2d 676 (1998), and expanded the best interest of the child standard adopted through case law* * by providing specific factors that the court is to consider.

The first element that the defendant was required to prove was that the relocation was for a legitimate purpose. General Statutes § 46b-56d (a) (1). In support of his argument, the plaintiff asserts that (1) the defendant had other job offers in Connecticut and as a registered nurse would have been able to find employment, (2) the defendant did not believe Yale-New Haven Hospital actually terminated her employment for being pregnant or she would have filed a lawsuit, (3) the defendant had funds to pay for child care and (4) although her house was small, it was on the beach and a larger house in a less desirable location may have been more affordable. The plaintiff argues that the real reason that the defendant wanted to relocate was to reduce the amount of contact the parties’ minor child has with the plaintiff.

The court found that the defendant was the sole custodian of a nine year old, an eighteen month old and a newborn child and that she was living in a very small home and having a hard time maintaining consistent employment at Yale-New Haven Hospital. The defendant was also found not to have family support in her current location and to have a “mind bogglingly difficult” schedule on any given morning. Due to her schedule and need both to care for all three children as well as to work full-time, the court found that the defendant’s purpose for seeking relocation was legitimate. Further, the court referenced the history of the case and surmised that after seven years of litigation, it was clear that the parties were in constant conflict. Despite the obvious personal conflict between the parties, the defendant remained in the geographical area set out in the parties’ dissolution agreement and did not try to evade such requirement. The court found that the defendant’s willingness to remain near the plaintiff until this point signified to it that the reason stated in the defendant’s motion to relocate and to modify visitation was legitimate.

Second, the plaintiff asserts that the relocation was not reasonable in light of the purported purpose because the defendant had not yet secured employment or housing near Sea Cliff and, contrary to the court’s finding that her other children lacked a support system, she asserted that she only lacked a support system for the parties’ minor child. The court found that the defendant currently had scattered employment and needed to work full-time to support her three children. The court mentioned that it might be harder for the defendant to find someone to care for her infant than for the parties’ minor child but that the effect on the parties’ minor child was the same. Either way, it was disrupting the defendant’s ability to parent and to work. Importantly, the court stressed that the issue of day care was not a financial problem, because even if day care costs were covered, day care does not look after children who are sick. The court emphasized the importance of a support system, consisting of the defendant’s parents, other family and friends, that would give the defendant child care options should one of her three children get sick. These factors, the court found, would facilitate the defendant in finding and progressing in a full-time position.

Finally, the plaintiff argues that considering the factors set forth in § 46b-56d (b), the relocation was not in the best interest of the child. “We recognize the difficult issues that relocation cases present. The interests of the custodial parent who wishes to begin a new life in a new location are in conflict with those of the noncustodial parent who may have a strong desire to maintain regular contact with the child. At the heart of the dispute is the child, whose best interests must always be the court’s paramount concern. Those interests do not necessarily coincide, however, with those of one or both parents.” Ireland v. Ireland, supra, 246 Conn. 419-20. This court has noted that employing the best interest of the child standard in a termination case “is a difficult task that requires the court to weigh many different and sometimes competing interests.” In re Davonta V., 98 Conn. App. 42, 48, 907 A.2d 126 (2006), aff'd, 285 Conn. 483, 940 A.2d 733 (2008). Similarly, the trial court was faced with the same challenge when deciding the issue of relocation. It candidly stated that both options, allowing or disallowing relocation, had negative aspects. For example, the court recognized that by allowing relocation, the plaintiff would not be able to coach the parties’ minor child or attend his sporting events with the same frequency. Overall, however, the court found that although this relationship would not be the same, the parties’ minor child would be able to maintain a relationship with the plaintiff while gaining a mother who “can work with some emotional support and be able ... to care for her family.” Because the defendant is the sole custodian of the parties’ minor child, the court found that this result was in the best interest of the child.

In essence, the plaintiff presents a compilation of evidence that he believes weighs heavily in his favor and asks that this court reassess and reweigh all of the evidence presented at trial to find this evidence dispositive of the issue of relocation. “Once again, this court is compelled to state, what has become a tired refrain, we do not retiy the facts or evaluate the credibility of witnesses.” (Internal quotation marks omitted.) Lederle v. Spivey, supra, 113 Conn. App. 190. As recounted previously, there is sufficient evidence in the record to support the court’s findings of fact and determination of the issue of relocation. We, therefore, cannot conclude that the court abused its discretion when granting the defendant’s motion to relocate.

II

The plaintiff next claims that the court abused its discretion in awarding the defendant attorney’s fees to defend the plaintiffs appeal. Specifically, the plaintiff argues that the court improperly applied § 46b-62 because, although the statute allows the award of attorney’s fees so that other financial orders are not undermined, the only other financial order was the recently lowered child support, and, therefore, the award was inappropriate. Also, the plaintiff argues that the defendant never made an evidentiary showing that she needed attorney’s fees, which, the plaintiff contends, is a prerequisite to an award of attorney’s fees. We disagree.

“General Statutes § 46b-62 vests in the trial court the discretion to award attorney’s fees in custody proceedings. Our Supreme Court has included within the definition of attorney’s fees allowable under § 46b-62 certain costs of litigation, including expert witness fees. . . . The criteria to be considered in determining whether an award of attorney’s fees is appropriate include the age, health, station, occupation, amount and sources of income, vocational skills, employability [and] estate and needs of each of the parties. . . . We review the court’s awarding of attorney’s fees under the abuse of discretion standard. . . . The ultimate issue in our review, therefore, is whether the court reasonably could have concluded as it did.” (Citation omitted; internal quotation marks omitted.) Rozsa v. Rozsa, 117 Conn. App. 1, 18, 977 A.2d 722 (2009).

In the present case, the court reasonably could have concluded as it did. There is evidence in the record that supports the court’s finding that the plaintiff was not credible regarding his income. The plaintiff testified that there was a mistake on his financial affidavit concerning the amount he was paying for his automobile lease and admitted that the financial affidavit he submitted to the court was made from his recollection, as opposed to from his records. The plaintiff also testified that his 2006 tax return, which reflected a weekly income of $7000, was just an anomaly due to a large commission attached to a particular business transaction. The court found that the plaintiffs informal method of calculating his financial affidavit, references to mistakes in the numbers and claim that his high prior weekly income was not indicative of his current income combined to undermine his credibility. The court did not abuse its discretion in finding that the plaintiffs lifestyle reflected a financial situation that allowed him to pay for the defendant’s attorney’s fees incurred in defending his appeal. Furthermore, the defendant submitted a financial affidavit showing weekly income and weekly expenses that she incurred as the sole custodian of the parties’ minor child. The affidavit further showed that the defendant was unemployed at the time that it was filed. Last, the plaintiff testified that at the time of the hearing, his child support payments to the defendant were in arrears. The evidence presented at the hearing is sufficient to support the court’s finding that the defendant was unable to afford the attorney’s fees required to defend the plaintiffs appeal. Accordingly, we conclude that the court did not abuse its discretion when awarding the defendant attorney’s fees.

The judgment is affirmed.

In this opinion the other judges concurred.

       At the time of the hearing, the defendant lived in Madison.

       General Statutes § 46b-56d provides: “(a) In any proceeding before the Superior Court arising after the entry of a judgment awarding custody of a minor child and involving the relocation of either parent with the child, where such relocation would have a significant impact on an existing parenting plan, the relocating parent shall bear the burden of proving, by a preponderance of the evidence, that (1) the relocation is for a legitimate purpose, (2) the proposed location is reasonable in light of such purpose, and (3) the relocation is in the best interests of the child.
      “(b) In determining whether to approve the relocation of the child under subsection (a) of 1his section, the court shall consider, but such consideration shall not be limited to: (1) Each parent’s reasons for seeking or opposing the relocation; (2) the quality of the relationships between the child and each parent; (3) the impact of the relocation on the quantity and the quality of the child’s future contact with the nonrelocating parent; (4) the degree to which the relocating parent’s and the child’s life may be enhanced economically, emotionally and educationally by the relocation; and (5) the feasibility of preserving the relationship between the nonrelocating parent and the child through suitable visitation arrangements.”

       See Ireland v. Ireland, supra, 246 Conn. 419-20 (employing best interest of child standard, used in custody and visitation cases, to decide issue of relocation).

       Only the nine year old was an issue of the subject marriage.

       The plaintiff also argues that the defendant’s testimony evinces that the defendant’s true motivation to relocate was to keep the parties’ minor child away from the plaintiff. On cross-examination, the defendant testified:
      “Q. You testified that you were not seeking to relocate to punish [the plaintiff], but you did testify that you’re doing it to reduce [the minor child’s] contact with his father. Is that correct?
      “A. To reduce the—the negative—the conflict or the damage and the concerns—conflict that goes on. Yes.
      “Q. So, your way of doing that would be to reduce the contact between [the minor child] and [the plaintiff]. Is that correct?
      “A. To limit it. Yes.”
      The court did not find that this testimony was indicative of the defendant’s true motive to relocate with the parties’ minor child. Rather, this testimony supports the court’s description of the type of environment to which the parties’ minor child had been subjected. The court found that “the file makes clear that [the minor child] is already in counseling. He has now lived through four years of conflict. I don’t think [the minor child] has a conscious memory that doesn’t involve the conflict between his parents. That’s all he has known.”
      Further, the court, found that “[f]or seven years, despite what [the court] quoted Dr. [James] Connolly [a psychologist] as saying is a relentless pursuit of sole custody, [the defendant] has not left the area. She hasn’t attempted to leave the area.” Additionally, “[t]wo judges have found that [the defendant] has been willing to facilitate and encourage the contact and continuing parent-child relationship between [the plaintiff] and [the minor child], and the rich relationship they have speaks to that. That’s not going to change.” Therefore, we do not find that this testimony is proof that the court’s finding that the defendant’s reason for wanting to relocate was legitimate, is clearly erroneous.


text:
    MATTHEW COSTER v. CRISTINA DUQUETTE
    (AC 30601)
    Beach, Robinson and Schaller, Js.

      Argued October 27, 2009
    officially released March 16, 2010

      Dov Braunstein, with whom, on the brief, was Robert A. Scott, for the appellant (defendant).

      Brennen C. Maki, with whom, on the brief, was James F. Murtha, certified legal intern, for the appel-lee (plaintiff).
   Opinion

ROBINSON, J.

The defendant, Cristina Duquette, appeals from the judgment of the trial court rendered in favor of the plaintiff, Matthew Coster, following a trial to the court. On appeal the defendant claims that the court improperly (1) found that she had converted the plaintiffs final examination paper, (2) found that the plaintiff had not converted her final examination paper and (3) awarded the plaintiff punitive damages in the form of attorney’s fees. We affirm the judgment of the trial court.

The court reasonably could have found the following facts. In the spring of 2006, the plaintiff and the defendant were both students at Central Connecticut State University (university) enrolled in a western civilization class taught by professor Ronald Moss. A final examination paper on the Holocaust was due by 5 p.m. on May 15, 2006. On May 14, 2006, the plaintiff commenced work on his paper and on May 15, 2006, at about 4 p.m., put his final examination paper into Moss’ mailbox.

On May 19,2006, the defendant e-mailed Moss, inquiring about her grade on the final examination paper. On May 22, 2006, Moss e-mailed the defendant in response and informed her that he did not have her paper but that she had until the next morning to e-mail a copy to him without penalty. On May 23, 2006, at 3:19 p.m., the defendant e-mailed Moss, explaining that she had left her paper in his mailbox on the due date and that she would not have jeopardized her grade by doing otherwise. One minute later, the defendant sent another e-mail from another e-mail account with her paper attached.

On May 23, 2006, at 5:15 p.m., that same day, Moss sent an e-mail to the other students in his class who had not submitted a final examination paper, which included the plaintiff, informing them that he had not received their papers. Moss then indicated that if any of the students had actually submitted a hard copy of their paper on the due date, the student should e-mail Moss a copy of it as soon as possible to avoid receiving a zero on the examination. The plaintiff responded to the e-mail a short time later with an e-mail declaring that he had already submitted his paper but was sending a copy of it as an attachment anyway.

After reviewing the plaintiffs and the defendant’s papers, Moss concluded that approximately 80 percent of the two papers were similar. Moss scheduled a meeting with both the plaintiff and the defendant to discuss the similarities in the papers; however, Moss showed only the defendant’s paper to the plaintiff.

On May 30, 2006, Moss filed an academic misconduct report regarding the plaintiffs alleged plagiarism. After an internal investigation, including a detailed comparison of the writing style, grammar and references used in both papers, the university charged the plaintiff with plagiarizing the final examination paper, providing false information to Moss and taking another student’s examination paper from Moss’ mailbox. A hearing was held before a panel that issued a decision on September 1, 2006, to expel the plaintiff from the university. The plaintiffs internal appeal was denied.

In July, 2007, the plaintiff filed a lawsuit claiming that the defendant was liable for conversion and civil theft. On November 2, 2007, the defendant filed an answer and special defenses. The defendant also filed a counterclaim against the plaintiff for conversion of her final examination paper. The court found in favor of the plaintiff on his complaint as to the claim of conversion and for the defendant as to the claim of civil theft. The court awarded punitive damages to the plaintiff in the form of attorney’s fees. This appeal followed.

I

The defendant first claims that the court improperly found that the defendant converted the plaintiffs final examination paper. Specifically, the defendant argues that, inter alia, (1) she was a better student and, therefore, had no motivation to convert the plaintiffs paper, (2) the court improperly ignored the analyses of the two papers conducted by Moss and Christopher Dukes, the director of the office of student conduct at the university, (3) the court improperly credited the plaintiffs testimony, (4) the court ignored expert testimony regarding creation and modification of document dates stored on computers and (5) the court disregarded the unaccounted for time that the defendant allegedly held onto the plaintiffs paper before submitting it as her own work. We disagree.

“The applicable standard of review is whether the court’s conclusion that the evidence supported the finding of conversion was clearly erroneous. We have long held that a finding of fact is reversed only when it is clearly erroneous. ... A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made. . . . Simply put, we give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Internal quotation marks omitted.) Aubin v. Miller, 64 Conn. App. 781, 796, 781 A.2d 396 (2001).

“The tort of [c]onversion occurs when one, without authorization, assumes and exercises ownership over property belonging to another, to the exclusion of the owner’s rights. . . . Thus, [conversion is some unauthorized act which deprives another of his property permanently or for an indefinite time; some unauthorized assumption and exercise of the powers of the owner to his harm. The essence of the wrong is that the property rights of the plaintiff have been dealt with in a manner adverse to him, inconsistent with his right of dominion and to his harm.” (Internal quotation marks omitted.) Sullivan v. Thorndike, 104 Conn. App. 297, 307, 934 A.2d 827, cert. denied, 285 Conn. 907, 908, 942 A.2d 415, 416 (2008). “To establish a prima facie case of conversion, the plaintiff had to demonstrate that (1) the material at issue belonged to the plaintiff, (2) that [the defendant] deprived the plaintiff of that material for an indefinite period of time, (3) that [the defendant’s] conduct was unauthorized and (4) that [the defendant’s] conduct harmed the plaintiff.” News America Marketing In-Store, Inc. v. Marquis, 86 Conn. App. 527, 545, 862 A.2d 837, aff'd, 276 Conn. 310, 885 A.2d 758 (2005).

Here, the court found that the plaintiff began work on his paper on May 14, 2006. The court found credible the testimony of Mark Grzelak, a toll communications and technology consultant and engineer, that the properties of the file containing the plaintiffs final examination paper showed that it was created on May 15, 2006, at 1:27 a.m. and last modified on May 15, 2006, at 3:38 p.m. The court found that the plaintiff put his final examination paper into Moss’ mailbox at approximately 4 p.m. on May 15, 2006, whereas, the court found that the defendant submitted her paper to Moss via e-mail on May 23, 2006. The court found that the defendant’s testimony that she saved her final examination paper on May 14 or 15, 2006, on the “M” drive of the university’s computer system, which was later allegedly purged, was not credible.

Further, after reviewing the two papers, the court found it more likely that the defendant converted the plaintiffs paper and handed it in as her own because of the notes that the plaintiff submitted to the court, which he used to write the paper and which the defendant did not have, blatant substantive errors that were not corrected in the defendant’s paper and typographical and structural errors that were corrected in the defendant’s paper. Finally, the court found that the conversion of the plaintiffs paper caused him harm by subjecting him to an internal investigation conducted by the university, in which he was found liable for plagiarizing his examination and subsequently expelled from the university. After our review of the record, we conclude that all of those findings are supported by the evidence in the record and, thus, are not clearly erroneous. Therefore, under the facts and circumstances of this case, the court’s conclusion that the defendant converted the plaintiffs final examination paper was not clearly erroneous.

II

The defendant also claims that court improperly awarded the plaintiff punitive damages in the form of attorney’s fees. In support of this claim, the defendant argues that there was no evidence that the defendant acted recklessly, which is necessary to support an award of punitive damages, because it was her paper that was converted, and, therefore, she was not deceitful when she failed to confess to misconduct. We disagree.

“In awarding punitive damages in the form of attorney’s fees, [t]he trial court has broad discretion in determining whether damages are appropriate. ... Its decision will not be disturbed on appeal absent a clear abuse of discretion. . . . Punitive damages are awarded when the evidence shows a reckless indifference to the rights of others or an intentional and wanton violation of those rights.” (Citation omitted; internal quotation marks omitted.) Bhatia v. Debek, 287 Conn. 397, 420, 948 A.2d 1009 (2008).

The court found that the defendant acted with reckless indifference to the plaintiffs rights when she failed to disclose the truth about her conversion of the plaintiffs paper while testifying at the university’s internal investigation of the plaintiff. Because we have already concluded that the court’s finding that the defendant converted the plaintiffs final examination paper was not clearly erroneous, the court’s evidentiary basis for its finding that the defendant was reckless is similarly supported by the record.

The judgment is affirmed.

In this opinion the other judges concurred.

      The defendant also included counts for “abuse of process-vexatious suit,” emotional distress and civil theft in her counterclaim. The court found in favor of the plaintiff on all counts of the counterclaim. None of these other counts, however, are the subject of this appeal.

       The defendant also claims that the court improperly dismissed her counterclaim that alleged conversion. After reviewing the court’s memorandum of decision, we note that the court did not dismiss the defendant’s counterclaim but, rather, found in favor of the plaintiff. Because we have already reviewed the record and concluded that the court’s decision that the defendant converted the plaintiffs final examination paper is not clearly erroneous, we conclude that, consequently, the court’s decision against the defendant regarding her counterclaim alleging conversion of the same final examination paper is not clearly erroneous either.