author: GRUENDEL, J.

text:
    TD BANKNORTH, N.A. v. WHITE WATER MOUNTAIN RESORTS OF CONNECTICUT, INC., ET AL.
    (AC 32639)
    Gruendel, Robinson and Sullivan, Js.

      Argued December 6, 2011
    officially released February 14, 2012

      KennethR. Leavitt, pro se, the appellant (defendant).

      Robert M. Barrack, for the appellee (substitute plaintiff).
   Opinion

GRUENDEL, J.

The self-represented defendant Kenneth R. Leavitt appeals from the August 2, 2010 judgment of strict foreclosure rendered by the trial court in favor of the substitute plaintiff, Middlefield Holdings, LLC. The defendant argues that the court improperly denied his motion to open the judgment, failed to consider certain facts when rendering the judgment of strict foreclosure and erred by failing to interpret his pleadings as a writ of audita querela. We affirm the judgment of the trial court.

The following factual and procedural history is relevant to our disposition of this appeal. On August 26, 2003, White Water Mountain Resorts of Connecticut, Inc. (White Water), executed a promissory note in the amount of $2,000,000 in favor of TD Banknorth, N.A. (TD Banknorth). To secure the note, White Water executed a mortgage in favor of TD Banknorth on its Powder Ridge property in Middlefield (first mortgage). On the same date, the defendant executed a guaranty in favor of TD Banknorth, pursuant to which he guaranteed payment of all sums due under the promissory note. To secure the note and the guaranty, the defendant gave TD Banknorth a mortgage on his residential property in Middlefield (residential mortgage).

On June 1, 2004, White Water executed a promissory note in the amount of $430,000 in favor of TD Banknorth, also secured by a mortgage on the Powder Ridge property (second mortgage). On the same date, the defendant executed another guaranty in favor of TD Banknorth, guaranteeing payment of all sums due under the second note.

In November, 2005, TD Banknorth filed a three count revised complaint seeking foreclosure of the first mortgage, the second mortgage and the residential mortgage. On January 30, 2006, TD Banknorth filed a motion for judgment of strict foreclosure on all three mortgages. The defendant subsequently was defaulted for failure to plead. On April 3,2006, the court rendered an amended judgment of foreclosure by sale with respect to the first and second mortgages and set a sale date of April 14, 2007.

On April 6, 2007, the action was stayed due to an involuntary bankruptcy petition filed against White Water by three of its creditors. After obtaining relief from the bankruptcy stay, the plaintiff filed a motion to open the judgment on the first and second mortgages and to set a new sale date. On April 7, 2008, the court granted the motion to open and rendered a new judgment of foreclosure by sale for the Powder Ridge property, determining the debt to be $3,229,337.70. A sale date of June 21, 2008, was set. The plaintiff was the highest bidder at the foreclosure sale with a bid of $2.75 million. The court approved the sale on July 14, 2008.

On February 27, 2009, the plaintiff filed a motion seeking strict foreclosure of the residential mortgage. The court granted the motion and rendered a judgment of strict foreclosure on March 30, 2009. On June 17, 2009, the defendant filed a motion to open the judgment of foreclosure, which the court denied. On July 23, 2010, the defendant filed a motion for stay of the foreclosure action, which the court denied. On August 2, 2010, the court rendered a new judgment of strict foreclosure as to the defendant’s residential property, finding the debt to be $628,134.44 and ordering law days to commence on October 4, 2010. This appeal followed.

The defendant argues first that the court improperly interpreted his motion to open as applying only to the April 7, 2008 judgment and, therefore, improperly denied the motion as untimely. The defendant’s second argument is based on his ongoing allegations of fraud, namely, a lost subordination agreement and the sale of personal property, and is apparently challenging the August 2, 2010 judgment of strict foreclosure from which he appealed. The defendant also argues that the court erred in failing to consider his pleadings as a writ of audita querela. We address each claim in turn.

I

The defendant first claims that the court improperly denied his June 17, 2009 motion to open the judgment. Specifically, he argues that the motion was timely filed as to the March 30, 2009 judgment foreclosing the residential mortgage, and, if the court interpreted the motion as seeking to open only the April 7, 2008 judgment of foreclosure as to the first and second mortgages, then that was an abuse of the court’s discretion. We disagree that it was error to interpret the motion to open as only directed at the April 7, 2008judgment of foreclosure by sale and conclude that the court properly denied the motion.

“Our courts have the inherent authority to open, correct or modify judgments, but this authority is restricted by statute and the rules of practice.” Ziruk v. Bedard, 45 Conn. App. 137, 138, 695 A.2d 4, cert. denied, 243 Conn. 905, 701 A.2d 339 (1997). Pursuant to General Statutes § 52-212a, a civil judgment may not be opened unless a motion to open is filed within four months following the date on which it was rendered. “When a motion to open is timely filed, our review is limited to whether the court has acted unreasonably or has abused its discretion.” (Internal quotation marks omitted.) Federal Ins. Co. v. Gabriele, 54 Conn. App. 459, 461, 735 A.2d 368 (1999). When a motion to open is untimely, the trial court lacks authority to open the judgment. Citibank, N.A. v. Lindland, 131 Conn. App. 653, 660-61, 27 A.3d 423, cert. granted on other grounds, 303 Conn. 906, 31 A.3d 1180 (2011). Whether the court properly determined that it lacked authority to open the judgment of strict foreclosure presents a question of law over which our review is plenary. See Falls Mill of Vernon Condominium Assn., Inc. v. Sudsbury, 128 Conn. App. 314, 318, 15 A.3d 1210 (2011).

We first address the plaintiffs contention that this issue is not properly before this court. The plaintiff argues that any arguments raised by the defendant based on the June 17, 2009 denial of the motion to open are not properly before this court because the defendant did not appeal from that judgment. The appeal form, filed on August 25, 2010, states that the defendant is appealing from the “judgment of strict foreclosure.” Because the defendant failed to appeal from the June 17, 2009 judgment within twenty days as required by Practice Book § 63-1, the plaintiff claims that any appeal from that judgment is untimely and cannot be raised as a ground for appeal.

Although the defendant’s preliminary statement of the issues, filed on September 2, 2010, does not raise arguments relating to the denial of the motion to open, the defendant’s statement of the issues in his brief, filed on March 18,2011, lists as the first issue the trial court’s error in denying the motion to open. The plaintiff was required to challenge that ground for appeal within ten days after the filing of the appeal pursuant to Practice Book § 66-8. See Connecticut Commercial Lenders, LLC v. Teague, 105 Conn. App. 806, 808-809, 940 A.2d 831 (2008); Chase Manhattan Mortgage Corp. v. Machado, 83 Conn. App. 183, 185 n.3, 850 A.2d 260 (2004); Savage v. Savage, 25 Conn. App. 693, 694 n.1, 596 A.2d 23 (1991). Consequently, the plaintiff has waived its right to seek dismissal of the defendant’s arguments relating to his motion to open as an untimely appeal.

It is the defendant’s contention that his motion to open was directed at both the judgment of foreclosure by sale of the first and second mortgages and the strict foreclosure judgment of the residential mortgage. The court’s articulation makes clear that the court interpreted the motion to open as applying only to the judgment of foreclosure by sale of the first and second mortgages. We therefore must determine whether the court properly determined that the motion to open applied only to the April 7, 2008 judgment of foreclosure by sale.

The defendant’s motion to open presents the long and convoluted history of this litigation, and the various theories of fraud that the defendant consistently has alleged. The motion to open argues that “the extent of corrupt practices by town officials was so significant and central to the case at hand as to warrant a reopening of the foreclosure matter involving the Powder Ridge Ski Area . . . .” The motion states that “due process calls for the foreclosure action of Powder Ridge Ski Area to be vacated by the court . . . .” The motion, approximately twenty pages long, mentions only in passing the judgment of strict foreclosure on the residential mortgage and does not request that the judgment be opened. On its face, the motion plainly seeks to open only the April 7, 2008 judgment of foreclosure by sale on the first and second mortgages.

Moreover, the plaintiff correctly argues that at the time that the defendant filed his motion to open, the court had already granted an earlier motion to open filed by Mortgage Electronic Registration Systems, Inc. (Mortgage Electronic). On May 21, 2009, after the court had rendered the judgment of strict foreclosure as to the residential mortgage, Mortgage Electronic filed a motion to open the judgment of strict foreclosure, claiming that its mortgage on the property had partial priority to the plaintiffs mortgage under the doctrine of equitable subrogation. The court granted the motion on May 26, 2009. When the defendant filed his June 17, 2009 motion to open, the judgment already had been opened. Therefore, we conclude that the defendant’s motion to open was only directed at the April 7, 2008 judgment of foreclosure by sale.

We conclude further that the court properly denied the motion to open as to the April 7, 2008 judgment of foreclosure by sale. “A motion to open a judgment of foreclosure by sale is typically subject to two restrictions. . . . First, a motion to open a judgment of foreclosure by sale must be filed within the four month restriction of General Statutes § 52-212a. . . . [T]he second restriction on a motion to open a judgment of foreclosure by sale is that it must be filed before absolute title left the property owner, which [in the case in which the motion is filed by the holder of the equity of redemption] means before the committee sale was approved.” (Citations omitted; internal quotation marks omitted.) Citibank, N.A. v. Lindland, supra, 131 Conn. App. 660-62.

The defendant filed the motion to open on June 17, 2009, well outside the four month period following the April 7, 2008 judgment. Moreover, the sale was approved on July 14, 2008. The motion to open was untimely filed under either restriction articulated by this court in Citibank, N.A. v. Lindland, supra, 131 Conn. App. 660-62. Therefore, the court was without authority to open the judgment and properly denied the motion.

II

The defendant attempts to challenge the judgment of strict foreclosure on two grounds. He argues in his motion to open, and again in this appeal, that it was improper for the court not to consider the plaintiffs sale of personal property located at the Powder Ridge property that the defendant alleges was commercially unreasonable. The defendant also argues that the judgment of strict foreclosure was improper in light of a subordination agreement that allegedly demonstrates that the plaintiff improperly represented its mortgage on the residential property as having first priority. We do not reach the merits of these arguments because a default judgment was entered against the defendant.

“In order for foreclosure cases to move as swiftly as possible through our court system, it is imperative that a defendant disclose any defenses to the mortgage debt prior to the hearing. ” Suffield Bank v. Berman, 25 Conn. App. 369, 373, 594 A.2d 493, cert. dismissed, 220 Conn. 913, 597 A.2d 339, cert. denied, 220 Conn. 914, 597 A.2d 340 (1991). “The entry of a default constitutes an admission by the [defaulted party] of the truth of the facts alleged in the complaint.” (Internal quotation marks omitted.) Motherway v. Geary, 82 Conn. App. 722, 728, 846 A.2d 909 (2004). Practice Book § 17-33 (b) provides in relevant part that “the effect of a default is to preclude the defendant from making any further defense in the case so far as liability is concerned . . . .” It also provides that “at or after the time it renders the default, [the judicial authority] may also render judgment in foreclosure cases . . . provided the plaintiff has also made a motion for judgment and provided further that any necessary affidavits of debt or accounts or statements verified by oath, in proper form, are submitted to the judicial authority.” Practice Book § 17-33 (b).

On November 4, 2010, the defendant filed a motion for articulation as to the judgment of strict foreclosure. The defendant requested that the court articulate if the entry of a default judgment against the defendant was a factor in awarding strict foreclosure and also posited to the court that a default judgment was unfair in light of events that transpired after the entering of the default judgment. The court responded that the default judgment was “necessarily a factor in entering the judgment of strict foreclosure as such judgment is predicated on the entry of a default or admission of liability.” The court also responded that any material changes in events and circumstances following the entry of default “did not justify the opening of a judgment and vacating of a default, assuming the court had authority in the first instance, to set aside a default entered four years earlier and a judgment entered almost one year prior to the motion to open having been filed.”

The court granted the plaintiffs motion for default for failure to plead on February 7, 2006. The effect of the default was to preclude the defendant from making any defense to liability for the claims asserted in the complaint and to permit the entry of judgment in the plaintiffs favor. See Practice Book § 17-33 (b). Thereafter, the plaintiff filed a motion for a judgment of strict foreclosure, which was granted. The court was not required to address the arguments of a defaulted party as to issues of liability. Therefore, it was proper for the court not to take the circumstances alleged by the defendant into consideration, as explained in the court’s articulation.

Ill

The defendant also argues that the court erred by failing to consider his pleadings as a writ of audita querela. The defendant did not file a writ of audita querela with the trial court, and therefore this argument is not properly before us.

“The writ of audita querela provides relief from a judgment at law because of events occurring subsequently which should cause discharge of a judgment debtor.” (Internal quotation marks omitted.) Ames v. Sears, Roebuck & Co., 206 Conn. 16, 21, 536 A.2d 563 (1988). “The ancient writ of audita querela has been defined as a writ issued to afford a remedy to a defendant against whom judgment had been rendered, but who had new matter in defense (e.g., a release) arising, or at least raisable for the first time, after judgment. . . . Because the writ impairs the finality of judgments, the common law precluded its use in cases in which the judgment debtor sought to rely on a defense such as payment or a release that he had the opportunity to raise before the entry of judgment against him.” (Internal quotation marks omitted.) Anthony Julian Railroad Construction Co. v. Mary Ellen Drive Associates, 50 Conn. App. 289, 294, 717 A.2d 294 (1998).

The defendant did not file a writ of audita querela with the trial court. A writ of audita querela is filed with the court that rendered the judgment complained of. Young v. Young, 78 Conn. App. 394, 395-96, 827 A.2d 722 (2003); Ames v. Sears, Roebuck & Co., supra, 206 Conn. 19-20; 7 Am. Jur. 2d, Audita Querela § 5 (2007). Because the defendant did not distinctly raise the claim of audita querela in the trial court, we need not address here the vitality of that writ in this case. See Lashgari v. Lashgari, 197 Conn. 189, 201 n.7, 496 A.2d 491 (1985). Thus, we do not address this argument as it was not presented to the trial court.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.

In this opinion the other judges concurred.

       White Water Mountain Resorts of Connecticut, Inc., Powder Ridge Restaurant Corporation, White Water Mountain Resorts, Inc., and several subsequent encumbrancers were also named as defendants in this action. Because none of these defendants is a party to this appeal, we refer in this opinion to Leavitt as the defendant and refer to the other defendants by name.
      We note at the outset that the defendant, although represented by counsel initially, filed an appearance as a self-represented party on May 26, 2009. “Although we are mindful of our policy to be solicitous of pro se litigants . . . such policy is applicable only when it does not interfere with the rights of other parties. Although our courts allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law.” (Citation omitted; internal quotation marks omitted.) Shah v. Administrator, Unemployment Compensation Act, 114 Conn. App. 170, 177, 968 A.2d 971 (2009). The defendant’s failure to comply with procedural requirements in this matter “demonstrates that a pro se party who, unskilled in such matters, seeks to remedy some claimed wrong by invoking processes which are at best technical and complicated, is very ill advised and assumes a most difficult task.” (Internal quotation marks omitted.) Raffone v. Industrial Acceptance Corp., 119 Conn. App. 261, 265 n.2, 987 A.2d 1059 (2010).

       In November, 2006, the plaintiff TD Banknorth, N.A., assigned its interest in the subject notes and mortgages to Middlefield Holdings, LLC, which was substituted as the plaintiff in place of TD Banknorth, N.A., in January, 2007. Accordingly, we refer in this opinion to Middlefield Holdings, LLC, as the plaintiff.

       The defendant did not, at any time, file a motion to set aside the default pursuant to Practice Book § 17-42. White Water, Powder Ridge Restaurant Corporation, White Water Mountain Resorts, Inc., Fuss and O’Neill, Inc., and Mortgage Electronic Registration Systems, Inc., were also defaulted for a failure to plead.

       The defendant argues in this appeal that the motion to open was directed both at the April 7,2008 foreclosure by sale judgment rendered as to the first and second mortgages and the March 30, 2009 strict foreclosure judgment rendered as to his residential mortgage.

       On February 8, 2011, the court issued an articulation explaining its reasons for denying the defendant’s motion to open. The court’s articulation demonstrates that the court believed that the defendant’s motion to open was directed only at the April 7,2008 foreclosure by sale judgment rendered as to the first and second mortgages. The court articulated that the defendant’s motion to open that judgment was untimely, as it was not filed until well outside the four month period provided for by statute.

       The defendant also argues that the court should have held an evidentiary hearing before rendering the August 2, 2010 judgment. Practice Book § 23-18 (a) provides that “[i]n any action to foreclose a mortgage where no defense as to the amount of the mortgage debt is interposed, such debt may be proved by presenting to the judicial authority the original note and mortgage, together with the affidavit of the plaintiff or other person familiar with the indebtedness, stating what amount, including interest to the date of the hearing, is due, and that there is no setoff or counterclaim thereto.” Mortgage Electronic Registration Systems, Inc., filed an objection to proceeding to judgment by means of an affidavit of debt pursuant to Practice Book § 23-18 and requested an evidentiary hearing. The court overruled the objection in part because Mortgage Electronic Registration Systems, Inc., was also defaulted and, like the defendant, could not raise defenses to the amount or calculation of the debt. The defendant, however, never requested an evidentiary hearing, and therefore the issue is not properly before us.

       A denial of a motion to open filed outside of the twenty day appeal period but within the four month period provided for by statute; see General Statutes § 52-212a; is an appealable final judgment. See Morelli v. Manpower, Inc., 226 Conn. 831, 835, 628 A.2d 1311 (1993); First Connecticut Capital, LLC v. Homes of Westport, LLC, 112 Conn. App. 750, 755-60, 966 A.2d 239 (2009); C. Tait & E. Prescott, Connecticut Appellate Practice and Procedure (3d Ed. 2000) § 3.13, p. 103.

       Practice Book § 66-8 provides in relevant part: “Any claim that an appeal or writ of error should be dismissed, whether based on lack of jurisdiction, failure to file papers within the time allowed or other defect, shall be made by a motion to dismiss the appeal or writ. Any such motion must be filed in accordance with Sections 66-2 and 66-3 within ten days after the filing of the appeal or the return day of the writ, or if the ground alleged subsequently occurs, within ten days after it has arisen . . . .” (Emphasis added.)

       We note the distinction between a motion to open a judgment of foreclosure by sale and a judgment of strict foreclosure. While a judgment of foreclosure by sale is subject to the provisions of General Statutes § 52-212a; see Citibank, N.A. v. Lindland, supra, 131 Conn. App. 660-61; the opening of judgments of strict foreclosure is governed by General Statutes § 49-15. Under that provision, ajudgment of strict foreclosure may be opened for cause shown but may not “be opened after the title has become absolute in any encumbrancer General Statutes § 49-15 (a) (1); see also Falls Mill of Vernon Condominium Assn., Inc. v. Sudsbury, supra, 128 Conn. App. 319-20. Because we conclude that the motion to open was directed solely at the judgment of foreclosure by sale, the timeliness of the motion is determined by § 52-212a.

       To the extent that the defendant argues that the court should have sua sponte identified his pleadings as a writ of audita querela, we disagree. A writ of audita querela affords a remedy to a defendant against whom judgment has already been rendered. Anthony Julian Railroad Construction Co. v. Mary Ellen Drive Associates, supra, 50 Conn. App. 294. The defendant’s pleadings, in particular his motion to open, were filed before the court rendered its judgment of strict foreclosure on August 2, 2010. Because the defendant could not file a writ of audita querela before the entry of judgment against him, the court did not err in not considering his prejudgment pleadings a writ of audita querela.


source: Caselaw Access Project

author:
ESPINOSA, J.
      BISHOP, J.,

license: Public Domain

text:
    MARSHAUN W. BELL, ADMINISTRATRIX (ESTATE OF CLARA ANN WOODS), ET AL. v. HOSPITAL OF SAINT RAPHAEL
    (AC 32338)
    Alvord, Espinosa and Bishop, Js.

      Argued September 22, 2011
    officially released February 14, 2012

      Susan King Shaw, with whom was David A. Shaw, for the appellants (plaintiffs).

      Michael D. Neubert, with whom was Vimala B. Ruszkowski, for the appellee (defendant).
   Opinion

ESPINOSA, J.

The plaintiff, Marshaun W. Bell, in her capacity as the administratrix of the estate of Clara Ann Woods, the decedent, and in her individual capacity, brought this medical negligence action against the defendant, Hospital of Saint Raphael. The plaintiff appeals from the judgment of the trial court dismissing the action on the ground that the plaintiff failed to satisfy General Statutes § 52-190a by filing a written opinion of a similar health care provider that there appears to be evidence of medical negligence on the part of the defendant. The plaintiff claims that the court improperly determined that the opinion letter filed in the present case failed to demonstrate that the author of the letter was a similar health care provider as defined in General Statutes § 52-184c. We affirm the judgment of the trial court.

The record discloses the following relevant procedural history. The plaintiff initiated this action by a two count complaint dated September 21, 2009. In count one, the plaintiff, in her capacity as administratrix, asserted a wrongful death claim on the basis of the defendant’s medical malpractice. She alleged the following relevant facts. At approximately 6:30 a.m. on June 23,2007, her decedent presented to the defendant’s emergency room with various physical symptoms, including elevated blood pressure, and the defendant undertook a duty to render health care services for the decedent’s benefit. The decedent’s blood pressure continued to be critically elevated and, by 10 a.m., the decedent was unresponsive and in severe respiratory distress. The decedent suffered a massive hemorrhagic stroke, which resulted in her death on June 27, 2007.

The plaintiff alleged that the defendant “breached its duty and the standard of care through the acts, conduct or omissions of its employees, servants, agents and apparent agents, or any one or more of them” in a variety of ways related to the treatment afforded the decedent. The plaintiff alleged that as a result of the breach of the duty of care by the defendant, the decedent “suffered a massive hemorrhagic stroke which resulted in her death on June 27, 2007,” the decedent suffered pain and permanently lost her ability to enjoy life’s activities and the decedent’s estate has incurred various expenses. In count two of the complaint, the plaintiff, in her individual capacity, alleged that as a result of the defendant’s breach of the duty of care owed the decedent as set forth in count one, she “has incurred and become obligated to pay for hospital and medical treatment and funeral and burial expenses.”

Attached to the complaint was a good faith certificate signed by the plaintiffs attorney. The plaintiffs attorney represented therein that, following a reasonable inquiry by her, she believed in good faith that grounds existed for a medical malpractice action against the defendant. Additionally, the plaintiff attached a document entitled “Health Care Provider’s Opinion Pursuant to [General Statutes §] 51-190a.” The letter stated in relevant part: “After a careful review of all of the documentation from this case, I have concluded that the staff at [the defendant] neglected to properly provide adequate or safe care for [the decedent]. The significant lack of intervention for critical vital signs is a clear source of deviation from a standard of emergency medical care which rose to the level of answerability for her untimely death.”

The opinion letter set forth specific facts related to the decedent’s condition at the time that she arrived at the hospital. The letter also set forth specific ways in which hospital staff failed to provide adequate or appropriate care, conduct that allegedly “led to a hemorrhagic stroke and [the decedent’s] untimely death.” The following initials appear at the end of the letter: “RN, BSN, ICP.”

Thereafter, the defendant filed a motion to dismiss on the ground that the plaintiff failed to attach to the good faith certificate “a written opinion letter of a similar health care provider indicating that there is evidence of medical negligence on the part of the [defendant’s] Emergency Department.” The plaintiff filed an objection to the motion. Both parties filed memoranda of law in support of their respective positions. Attached to the plaintiffs postargument brief was an affidavit of the plaintiffs attorney in which she averred in relevant part that she “[was] personally familiar with the author of the opinion letter in this case . . . .” She stated that “[t]he author has been a Registered Nurse in the State of Connecticut for a period of eleven years; she is licensed to practice in the State of Connecticut.” Also, the plaintiffs attorney stated that “[t]he author holds a Bachelor’s Degree from an accredited University in the State of Connecticut” and “[t]he author’s professional experience includes over ten years of acute, sub-acute and long term nursing care, including working in a trauma center in Connecticut.”

In support of its motion to dismiss, the defendant filed the affidavit of Alan S. Kliger, its vice president, chief medical officer and chief quality officer. Kliger averred that at the time of the events underlying the plaintiffs complaint “the Emergency Department at the [defendant] had its own entry point and was a clearly designated area of the [defendant] ” and “the Emergency Department was an area of the [defendant] staffed by health care providers trained, experienced and familiar in the delivery of emergency care and treatment.” Also, Khger stated that “[t]he [defendant] holds its Emergency Department out as a specialized area of the [defendant] where patients can obtain emergency care and treatment, and did so at the time of the underlying incident.” Finally, Kliger stated that the defendant was designated as a level II trauma center and that, “[a]t the time of the underlying incident the care and treatment of Emergency Department patients at the [defendant] was managed either by an Emergency Department physician or physician’s assistant.”

In a May 25,2010 memorandum of decision, the court granted the defendant’s motion to dismiss. The court summarized the key arguments advanced by the parties. The defendant argued that the author of the opinion letter purported to be a registered nurse and was not a “similar health care provider” under § 52-184c. Specifically, the defendant argued that in hght of the allegations that negligence occurred in its emergency department, the plaintiff was required by § 52-184c (c) to provide an opinion letter from a person with training, experience and proper certification in emergency medicine, something that the plaintiff did not do.

The plaintiff countered that because she alleged negligence on the pari of an institution rather than a specific health care provider, it was not practical to require her to comply strictly with § 52-190a (a). Rather, the plaintiff attempted to persuade the court that in fight of the specific allegations in her complaint she complied with the statute by providing the opinion of a health care provider as defined in § 52-184c (b).

The court concluded that § 52-190a (a) required the plaintiff to provide an opinion letter of a similar health care provider as defined in § 52-184c. Given the allegations in the complaint, the court concluded that “a similar health care provider is defined by the terms of . . . § 52-184c (b).” The court reasoned that a registered nurse was not necessarily precluded from authoring the letter because the allegations in the complaint were broad enough that some of them were encompassed by the practice area of a registered nurse. Thus, the court disagreed with the defendant’s contention that the letter was required to have been written by a physician board certified in emergency medicine. The court, however, took issue with the absence of information concerning the author’s qualifications, concluding: “The submitted opinion letter, even when supplemented with counsel’s affidavit, does not contain sufficient facts to satisfy the court that the author of the [opinion] letter meets the requirements of § 52-184c (b) to qualify as a ‘similar health care provider’ to the defendant.” In reaching its conclusion, the court observed that the letter did not set forth the author’s qualifications related to licensing, training, experience or any active involvement in any medical field during the five year period prior to the incident underlying the complaint. Accordingly, the court dismissed the action pursuant to § 52-190a (c). This appeal followed.

The plaintiff claims that the court improperly dismissed the action on the ground that the opinion letter did not reflect that its author was a similar health care provider. The plaintiff argues that insofar as it conveyed that the author was a registered nurse who held a bachelor of science degree in nursing the letter set forth some of the author’s qualifications. The plaintiff also relies on the averments of her trial attorney concerning the author’s qualifications. The plaintiff does not appear to argue that the letter addressed all of the qualifications of a similar health care provider, but asserts that dismissal was not warranted “because there was sufficient information provided [to the court] to infer the good faith inquiry of the plaintiff in this case.” She asserts that, although § 52-190a (a) requires that a similar health care provider set forth the basis of his or her opinion in a written letter, there is no statutory authority requiring that such health care provider, in the letter, set forth facts concerning his or her qualifications. Finally, the plaintiff urges us to conclude that § 52-190a (a) merely requires a showing that a good faith inquiry has been made but that “[i]t is premature to test the sufficiency of the good faith until after discovery has been completed.” Thus, the plaintiff asserts that the dismissal of the action was unwarranted.

The defendant argues that, although § 52-184c (b) requires that a similar health care provider have appropriate licensing and training, the plaintiff did not demonstrate that the author of the letter in the present case had such licensing and training and, thus, was qualified to render an opinion as to the standard of care owed by the defendant’s emergency department. The defendant agrees with the trial court that §§ 52-184c (b) and 52-190a (a) must be read together as requiring that the opinion letter set forth the author’s qualifications. The defendant disagrees that the plaintiffs attorney, by way of affidavit, properly could supplement the information in the opinion letter. Further, the defendant argues that, even if the filing of the affidavit was procedurally proper, the information before the court was still deficient with regard to all of the qualifications of the author of the opinion letter. Finally, the defendant urges us to reject the plaintiffs argument that the court, having concluded that the opinion letter was not authored by a similar health care provider, was not legally required to dismiss the action.

We begin our analysis by setting forth relevant statutory provisions. 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 52-184c, 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. . . . The claimant or the claimant’s attorney, and any apportionment claimant or apportionment claimant’s attorney, shall retain the original written opinion and shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate. ... In addition to such written opinion, the court may consider other factors with regard to the existence of good faith. . . .” (Emphasis added.)

Section 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.”

General Statutes § 52-184c (b) provides: “If the defendant health care provider is not certified by the appropriate American board as being a specialist, is not trained and experienced in a medical specialty, or does not hold himself out as a specialist, a ‘similar health care provider’ is one who: (1) Is licensed by the appropriate regulatory agency of this state or another state requiring the same or greater qualifications; and (2) is trained and experienced in the same discipline or school of practice and such training and experience shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim.”

Section 52-184c (c) provides: “If the defendant health care provider is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist, a ‘similar health care provider’ is one who: (1) Is trained and experienced in the same specialty; and (2) is certified by the appropriate American board in the same specialty; provided if the defendant health care provider is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a ‘similar health care provider.’ ”

The legislature enacted § 52-190a (a), in its initial form, to require the filing of a good faith certificate by a claimant or a claimant’s attorney “to discourage the filing of baseless lawsuits against health care providers.” LeConche v. Elligers, 215 Conn. 701, 710, 579 A.2d 1 (1990). “The purpose of the certificate is to evidence a plaintiffs good faith derived from the precomplaint inquiry. It 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.” Id., 711. Later, the legislature amended § 52-190a to require the filing of an opinion letter of a similar health care provider. See Public Acts 2005, No. 05-275, § 2. “The legislative history of this amendment indicates that it was intended to address the problem that some attorneys, either intentionally or innocently, were misrepresenting in the certificate of good faith the information that they had obtained from experts.” Dias v. Grady, 292 Conn. 350, 357-58, 972 A.2d 715 (2009).

Our Supreme Court has treated the failure to supply an opinion letter from a similar health care provider, when such failure was not the result of egregious conduct or gross negligence on the part of the plaintiff or his attorney, as a matter of form; see Plante v. Charlotte Hungerford Hospital, 300 Conn. 33, 46-47, 12 A.3d 885 (2011); and has concluded that the failure of a claimant to attach a proper written opinion letter implicates personal jurisdiction. In Morgan v. Hartford Hospital, 301 Conn. 388, 401, 21 A.3d 451 (2011), the court stated: “[T]he attachment of the written opinion letter of a similar health care provider is a statutory prerequisite to filing an action for medical malpractice. The failure to provide a written opinion letter, or the attachment of a written opinion letter that does not comply -with § 52-190a, constitutes insufficient process and, thus, service of that insufficient process does not subject the defendant to the jurisdiction of the court.”

The defendant properly challenged the court’s jurisdiction by filing a timely motion to dismiss the plaintiffs action. See Practice Book §§ 10-6 and 10-30; Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 29, 12 A.3d 865 (2011) (“a motion to dismiss pursuant to § 52-190a [c] is the only proper procedural vehicle for challenging deficiencies with the opinion letter”). “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [0]ur review of the court’s ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo. . . . When a . . . court decides a . . . question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a maimer most favorable to the pleader. . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.” (Internal quotation marks omitted.) Bennett v. New Milford Hospital, Inc., supra, 10-11. Here, there is no dispute as to the content of the materials filed by the plaintiff. The issue may be distilled to whether, as a matter of law, the service of process initiated by the plaintiff was inadequate because the plaintiff failed to attach to the good faith certificate a sufficient written opinion letter of a similar health care provider.

As a preliminary matter, there is no disagreement on appeal that the complaint alleged negligence in the care or treatment of the plaintiffs decedent by the defendant health care provider such that compliance with the requirements of § 52-190a was necessary. See Shortell v. Cavanagh, 300 Conn. 383, 393, 15 A.3d 1042 (2011) (“if an expert is needed to establish the standard of care, a fortiori, an opinion letter is required from a similar health care provider”). After carefully reviewing the record, we agree with the assessment of the trial court that the opinion letter submitted in the present case did not set forth sufficient information to demonstrate that its author was a similar health care provider qualified to render an opinion as to the standard of care owed by the defendant. With regard to the qualifications of its author, the only thing that may be gleaned from the opinion letter is that the author is a registered nurse with a bachelor of science degree in nursing. As set forth previously, § 52-184c (b) requires that a similar health care provider be “licensed by the appropriate regulatory agency of this state or another state requiring the same or greater qualifications,” that such provider have training and experience in the “same discipline or school of practice” and that such training and experience must “be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim.” Plainly, the information in the opinion letter did not address, let alone demonstrate, all of these specific qualifications. Nor, for purposes of § 52-184c (c), did the opinion letter represent that its author had been trained and experienced in any specialty or had been certified by any American board as a specialist.

It is the plaintiffs contention that the opinion letter was sufficient despite failing to demonstrate that the author has met these specified qualifications. A recent decision of this court has resolved the issue of whether § 52-190a requires that an opinion letter contain information showing that its author is a similar health care provider. In Lucisano v. Bisson, 132 Conn. App. 459, 466, 34 A.3d 983 (2011), this court held that “[t]he only-plausible application of the plain language of §§ 52-190a and 52-184c requires disclosure of qualifications in the opinion letter.” The analysis and holding of Lucisano controls our resolution of the plaintiffs argument concerning the sufficiency of the opinion letter.

Insofar as the plaintiff asserts that the legislature merely required a showing of good faith and that, at the time that the defendant filed the motion to dismiss, it was somehow premature to examine the qualifications of the author of the opinion letter, we are not persuaded. We already have discussed that a motion to dismiss is the proper procedural vehicle for challenging the sufficiency of an opinion letter and determined that an opinion letter must demonstrate that its author meets the qualifications of a similar health care provider. Recently, in Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 28, our Supreme Court held that “dismissal is the mandatory remedy when a plaintiff fails to file an opinion letter that complies with § 52-190a (a).” This controlling precedent defeats the plaintiffs argument that the immediate dismissal of the plaintiffs action was improper.

The judgment is affirmed.

In this opinion ALVORD, J., concurred.

BISHOP, J.,

concurring. Connecticut’s judiciary serves the interests of justice and the public by “resolving matters brought before it in a fair, timely, efficient and open manner.” Connecticut Judicial Branch, Mission Statement, available at http://www.jud.ct.gov/. This policy finds its genealogy in the constitution of Connecticut which provides, in article first, § 10: “All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.” Decisional law amplifies this basic tenet of our jurisprudence. Our Supreme Court has stated that there exists a “judicial policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court.” (Internal quotation marks omitted.) Pietraroia v. Northeast Utilities, 254 Conn. 60, 74, 756 A.2d 845 (2000). The availability of our courts to resolve disputes can, of course, be reasonably limited by jurisdictional as well as prudential constraints. I agree, as well, that the availability of the courthouse may also be made subject to reasonable regulation such as the imposition of reasonable use fees, compliance with behavioral norms, and other policy driven limitations created by the legislature. General Statutes § 52-190a (a) represents such a restriction. But, because this statute acts as a limitation on an individual’s access to court, I believe its prescriptions must be narrowly construed and not augmented by unlegislated, judicially imposed requirements. In adopting the view that § 52-190a requires not only that a complaint be accompanied by a letter from a health care provider similar to the defendant, but that the letter, itself, must also contain a complete exposition of the health care provider’s bona fides, I believe that this court has not only written a new requirement into the statute but, by broadly construing the statute, has frustrated Connecticut’s tradition of open courts available to all for the resolution of disputes.

Section 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 52-184c, 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. Such written opinion shall not be subject to discovery by any party except for questioning the validity of the certificate. The claimant or the claimant’s attorney, and any apportionment complainant or apportionment complainant’s attorney, shall retain the original written opinion and shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate. ... In addition to such written opinion, the court may consider other factors with regard to the existence of good faith. If the court determines, after the completion of discovery, that such certificate was not made in good faith and that no justiciable issue was presented against a health care provider that fully cooperated in providing informal discovery, the court upon motion or upon its own initiative shall impose upon the person who signed such certificate or a represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney’s fee. . . .” (Emphasis added).

Nowhere in this statutory language do I find a requirement that the letter from a similar health care provider contain an elucidation of the writer’s qualifications. Nonetheless, and as noted by the majority, this court recently has held that § 52-190a mandates that a similar health care provider’s opinion letter include a recitation of the author’s credentials and qualifications. See Lucisano v. Bisson, 132 Conn. App. 459, 466, 34 A.3d 983 (2011). I agree with the outcome reached by the majority in the case at hand because we are presently bound by this court’s ruling in Lucisano. I write separately, however, because I believe that such an interpretation of § 52-190a goes beyond the prescriptions of the statute, imposing an extra hurdle limiting a plaintiff s access to court not warranted either by application of the statute’s plain meaning or by the judiciary’s promise to openly hear and fairly resolve grievances brought to it for resolution.

For the reasons stated, I respectfully concur.

       We refer in this opinion to Marshaun W. Bell in both capacities as the plaintiff.

       The plaintiff alleged that the defendant breached its duty in the following ways:
      “(a) in that it failed to take appropriate steps to address the plaintiffs decedent’s critically high blood pressure on admission;
      “(b) in that it failed to notify appropriate staff of the critically elevated nature of the plaintiffs decedent’s blood pressure;
      “(c) in that it failed to take any steps to lower the blood pressure despite consecutive and critically elevated blood pressure readings while the plaintiffs decedent was still conscious and responsive in the emergency room;
      “(d) in that it failed to ensure the administration of appropriate medication to lower the plaintiffs decedent’s blood pressure or to notify appropriate staff of the severity of the plaintiffs decedent’s vital signs;
      “(e) in that it failed to monitor the plaintiffs decedent’s progress, resulting in a significant lapse of time during which the plaintiffs decedent was unconscious, in severe respiratory distress and unattended by staff;
      “(f) in that it failed to discover the plaintiff’s decedent’s condition;
      “(g) in that it failed to take any precautions to prevent the plaintiff’s decedent from suffering a stroke;
      “(h) in that it failed to take into consideration the plaintiffs decedent’s history of hypertension and pre-existing conditions in formulating an appropriate plan of care;
      “[i] [in that it] failed to promulgate or reinforce rules, regulations, standards, protocols and bylaws for the care of patients such as the plaintiffs decedent; and
      “tj] in that it failed to act in a reasonable and prudent fashion in light of the circumstances and conditions then and there prevailing.”

       It appears that the plaintiffs reference to § 51-190a rather than to § 52-190a, which clearly applies to the issue at hand, is a scrivener’s error.

       As it did before the trial court, the defendant maintains that the plaintiff was required to present an opinion letter authored by a “similar health care provider” as defined by § 52-184c (c), a health care provider that is certified as a specialist. On appeal, the plaintiff does not claim that her compliance with § 52-190a (a) was not required by law and, thus, that she was not required to submit an opinion letter of a similar health care provider. We conclude in this appeal that dismissal was warranted because the opinion letter at issue in the present case failed to demonstrate that its author possessed the qualifications of a “similar health care provider” as defined in either § 52-184c (b) or (c). Accordingly, in reviewing the judgment of the trial court, it is unnecessary for us to determine which subsection of § 52-184c applies.

       Although the court questioned whether it was proper for the plaintiffs attorney to supplement the information set forth in the opinion letter, the court concluded nonetheless that, even if it considered the averments of the plaintiffs attorney concerning the author’s qualifications, the letter and the attorney’s affidavit did not address all of the relevant qualifications. Because we conclude that the opinion letter, even when supplemented with the affidavit, did not disclose all of the qualifications set forth in either § 52-184c (b) or (c), it is unnecessary in this case for us to address the defendant’s argument that such supplementation of the letter was improper.

       Contrary to the concurring opinion’s characterization, we do not interpret this court’s case law to require that the letter “contain a complete exposition of the health care provider’s bona fides,” but merely that it disclose that the health care provider possesses the qualifications set forth in § 52-184c.


author: DiPENTIMA, C. J.

text:
    LORI A. QUARANTA v. DONALD J. KING II ET AL.
    (AC 32108)
    DiPentima, C. J., and Gruendel and Flynn, Js.
    Argued October 18, 2011
    officially released February 14, 2012

      John T. Bochanis, for the appellant (plaintiff).

      Joshua A. Yahwak, for the appellee (defendant David D’Addario).
   Opinion

DiPENTIMA, C. J.

The plaintiff, Lori A. Quaranta, appeals from the judgment of the trial court rendered after a jury verdict in favor of the defendant David D’Addario. On appeal, the plaintiff argues that the court improperly declined to admit photographs of rubber mats into evidence. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On or about September 11, 2004, the plaintiff attended a party hosted by the defendant on Clam Island off the coast of Branford. The defendant, who lives on Clam Island, assumed responsibility for transporting guests to and from the party via boat, using docks located at 275 Linden Avenue. The docks are owned by Donald J. King II, and Clam Island is located approximately one quarter of a mile from the docks. Upon disembarking from the boat after the party, the plaintiff fell through a space between the docks. The plaintiffs complaint alleged, inter alia, that, as a result of the defendant’s negligence, she sustained personal injuries due to the dangerous and defective condition of the docks.

At trial, King testified that he is a commercial fisherman and that he stores lobster crates and other fishing equipment on the docks. He then stated that “sometimes in order to span the space [between the docks] to move equipment, I put a mat there.” Counsel for the plaintiff, after questioning King regarding his use of the rubber mats, sought to introduce photographs of the mats into evidence. See footnote 3 of this opinion. Counsel for King objected to the admission of the photographs, stating: “I mean, it’s already in, it’s in the case as to when [King] uses [the rubber mats]. I don’t see why we would be getting a picture in two years later which has nothing to do with the condition the day of [the incident] . . . .” Counsel for the plaintiff countered that “it’s a question of fact for the jury as to . . . whether [the mats] should have been connected [to the docks] . . . .” The court sustained the objection and declined to admit the photographs into evidence, without explaining its reasoning. After the trial, the jury found for the defendant. In November, 2009, the plaintiff filed a motion to set aside the verdict or for a new trial, which was denied. The court thereafter rendered judgment in favor of the defendant, in accordance with the jury’s verdict. This appeal followed.

We first set forth the applicable standard of review. “The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence . . . [and its] ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the [appellant] of substantial prejudice or injustice.” (Internal quotation marks omitted.) Viera v. Cohen, 283 Conn. 412, 452, 927 A.2d 843 (2007).

The plaintiff argues that the court abused its discretion in declining to admit the photographs of the rubber mats into evidence. Specifically, the plaintiff argues that the court should have admitted the proffered photographs because the rubber mats were used, before and after the accident, to cover the gap between the docks where she fell. The defendant responds that the court did not abuse its discretion in excluding the photographs and that, even if it did abuse its discretion, the error was harmless.

“[E]ven if a court has acted improperly in connection with the introduction of evidence, reversal of a judgment is not necessarily mandated because there must not only be an evidentiary [impropriety], there also must be harm. ... In the absence of a showing that the [excluded] evidence would have affected the final result, its exclusion is harmless.” (Internal quotation marks omitted.) Lovetere v. Cole, 118 Conn. App. 680, 682, 984 A.2d 1171 (2009); see Kalams v. Giacchetto, 268 Conn. 244, 249-50, 842 A.2d 1100 (2004); see also State v. Pelletier, 85 Conn. App. 71, 79, 856 A.2d 435, cert. denied, 272 Conn. 911, 863 A.2d 703 (2004); L’Homme v. Dept. of Transportation, 72 Conn. App. 64, 71, 805 A.2d 728 (2002); In re Anna B., 50 Conn. App. 298, 305-306, 717 A.2d 289 (1998). “The harmless [impropriety] standard in a civil case is whether the improper ruling would likely affect the result. . . . When judging the likely effect of such a trial court ruling, the reviewing court is constrained to make its determination on the basis of the printed record before it. . . . Thus, our analysis includes a review of: (1) the relationship of the improper evidence to the central issues in the case, particularly as highlighted by the parties’ summations; (2) whether the trial court took any measures, such as corrective instructions, that might mitigate the effect of the evidentiary impropriety; and (3) whether the improperly admitted evidence is merely cumulative of other validly admitted testimony.” (Internal quotation marks omitted.) Dow-Westbrook, Inc. v. Candlewood Equine Practice, LLC, 119 Conn. App. 703, 722, 989 A.2d 1075 (2010); id., 723 (concluding that although trial court improperly precluded expert testimony, error was not harmful). “It is the [appellant’s] burden to show harmful error.” Puchalski v. Mathura, 82 Conn. App. 272, 276, 843 A.2d 685 (2004).

In the present case, the plaintiff argues that the photographs should have been admitted because they were relevant evidence concerning “knowledge and notice of the hole and the dangerous condition it posed if it was not covered.” The plaintiff also argues that the photographs would, therefore, have contradicted the testimony of the defendant that the gap between the docks was a naturally occurring condition that always existed on the dock. At the time of the proffer, King’s counsel objected on the grounds of relevancy, noting that the conditions in the photograph did not reflect the conditions on the day the plaintiff fell. See footnote 3 of this opinion. The court, while not explicitly stating its grounds for sustaining the objection to this evidence, noted that “there [has] been testimony about [King’s] use of mats before September 11, 2004, and after.” As we have noted, King testified that he previously had placed the rubber mats over the gap between the docks in order to move his lobster traps. Because the record is inadequate, we decline to review the plaintiffs claim.

In support of her claim on appeal, the plaintiff has provided only a partial transcript of the proceedings limited to the testimony of King and the defendant. We do not know what was before the jury as to the precise circumstances of the plaintiffs fall. In the absence of a more complete record, we cannot determine conclusively whether the exclusion of the photographs would likely have affected the result. See Desrosiers v. Henne, 283 Conn. 361, 368 n.6, 926 A.2d 1024 (2007) (declining to review claim that trial court improperly precluded evidence, explaining that “[b]ecause the [appellant] has not provided this court with the full trial transcripts, we do not have a complete record with which to conduct an inquiry into [whether evidence was properly excluded]”); Ryan Transportation, Inc. v. M & G Associates, 266 Conn. 520, 531, 832 A.2d 1180 (2003) (declining to review claim where plaintiff provided no transcript of witness testimony because “even if we assume, arguendo, that the challenged evidentiary ruling was improper, we have no way of discerning whether any such impropriety was harmful in the broader context of the entire trial” [emphasis added]); Puchalski v. Mathura, supra, 82 Conn. App. 276 (inadequate record where plaintiff provided partial transcript and record did not provide court with information regarding potential cumulative effect of other evidence presented to trial court). It is the duty of the appellant to provide an adequate record for review. See Practice Book § 61-10. Moreover, Practice Book § 63-8 (a) provides in relevant part: “On or before the date of filing the appeal, the appellant shall . . . order ... a transcript of the parts of the proceedings not already on file which the appellant deems necessary for the proper presentation of the appeal. ...”

Thus, even if the exclusion of the photographs were improper, we are unable to determine whether such exclusion would likely have affected the jury’s determination. See Puchalski v. Mathura, supra, 82 Conn. App. 276; see also Taylor v. American Thread Co., 200 Conn. 108, 111-12, 509 A.2d 512 (1986) (lack of appropriate transcripts precludes finding of error); DeMilo v. West Haven, 189 Conn. 671, 680-81, 458 A.2d 362 (1983) (lack of transcript of certain testimony precludes review of claim that trial court improperly failed to set aside verdict); Rice v. Housing Authority, 129 Conn. App. 614, 619, 20 A.3d 1270 (2011) (court could not determine merits of plaintiffs claim without transcripts of proceedings, there being no way in their absence to examine fully evidence before jury).

Furthermore, the plaintiff has failed to mark the proffered photographs for identification. “[T]he failure to mark an exhibit for identification ordinarily precludes appellate review of its exclusion . . . .” Cousins v. Nelson, 87 Conn. App. 611, 615 n.2, 866 A.2d 620 (2005). This failure may be excused, however, if there is an adequate substitute for identification. See id. Here, the parties’ appendices to their briefs to this court include copies of the same photograph depicting rubber mats on the docks. Dining trial, however, the plaintiff failed to mark that proffered photograph for identification, and there is no adequate substitute for this failure. Compare State v. Calderon, 82 Conn. App. 315, 327 n.7, 844 A.2d 866 (2004) (inadequate record where defendant failed to mark as exhibit for identification document included in appendix to her brief), cert. denied, 270 Conn. 905, 853 A.2d 523 (2004), cert. denied, 543 U.S. 982, 125 S. Ct. 487, 160 L. Ed. 2d 361 (2004) with Finan v. Finan, 287 Conn. 491, 496-97, 949 A.2d 468 (2008) (adequate substitute where unredacted, original exhibit remained part of court file, and also was duplicated in appendix to plaintiffs brief), and Cousins v. Nelson, supra, 615 n.2 (adequate substitute where plaintiff provided offer of proof of article’s contents in absence of jury, and such article was attached to plaintiffs motion to set aside verdict). Here, neither the colloquy between the court and the parties at the time of the proffer, nor the testimony of King, makes clear exactly which photograph or photographs were proffered. “This court’s role is not to divine the possibilities, but to review the claims and exhibits presented to the trial court.” Daigle v. Metropolitan Property & Casualty Ins. Co., 257 Conn. 359, 364, 777 A.2d 681 (2001). In the present case, the record is deficient in the absence of the photographs that form the basis of the plaintiffs claim. See id., 365. Therefore, for these reasons, we decline to review the plaintiffs claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff also named Donald J. King II and Polly D’Addario as defendants and judgment was rendered in their favor, but they are not parties to the present appeal. We therefore refer to David D’Addario as the defendant.

       We note that only King, and not the defendant, was questioned regarding the use of the rubber mats.

       First, we note that at the time of the proffer, the court stated: “Well, let’s just, for the record, I gather, [counsel for the plaintiff] wants the question on page 37 if the — [King’s] deposition to be read, which reads, all right, do you know when you put the — well, this photograph, it looks like it’s date stamped on it 9/21/2006. And again, I’m pointing to plaintiffs exhibit one, did you — would you have to reattach it every so often, that rubber mat, because it would fall off.” We do not have in the record before us any of the photographs marked for identification from King’s deposition testimony. Second, the plaintiff argues that certain photographs were improperly precluded. Both parties only include one photograph, however, in the appendices to their briefs, and at trial, the court stated that the defendant’s objection was “[sjustained as to the photograph.” (Emphasis added.)


author: BEACH, J.

text:
    ELIZABETH HARDIE v. AVI MISTRIEL ET AL.
    (AC 33253)
    Gruendel, Beach and West, Js.

      Argued November 28, 2011
    officially released February 14, 2012

      Cynthia M. Garraty, for the appellant (named defendant).

      Charles T. Busek, for the appellee (plaintiff).
   Opinion

BEACH, J.

The defendant Avi Mistriel appeals from the judgment of the trial court rendered in favor of the plaintiff, Elizabeth Hardie, finding that the defendant had trespassed on the plaintiffs land and awarding damages. On appeal, the defendant claims that the court erred in its award of damages. We reverse, in part, the judgment of the trial court.

The following facts, as found by the trial court, and procedural history are relevant. The plaintiff owned a parcel of real property in Danbury that abutted the defendant’s property. In late summer and early fall of 2007, the defendant was engaged in building a home on his property. On August 27, 2007, the defendant and a group of workers cleared trees and brush on the defendant’s property. The defendant crossed the boundary line onto the plaintiffs property and, under the mistaken belief that the trees were on his land, cut down and removed several trees that were located on the plaintiffs property and on the property line. He removed nine trees in total, most of which were from thirty to forty feet in height. The trees had provided shade and privacy for the plaintiffs backyard. Without the trees, the plaintiffs backyard was exposed to full sunlight and the plaintiff had a direct view of the defendant’s house.

In 2009, the plaintiff brought suit, alleging trespass, conversion, negligence and recklessness. The defendant filed a motion to strike the count of the complaint alleging recklessness, which motion the court granted. In its memorandum of decision dated February 3, 2011, the court found in favor of the plaintiff on the trespass count of the complaint. The court determined that the diminution in value to the plaintiffs property was properly measured by the cost of “cleanup and screening the area with new trees.” The court awarded the plaintiff $11,200, the amount of the cost of seven new trees; the court also awarded costs. This appeal followed.

The defendant argues that the court erred when it measured damages by the cost of cleaning up and screening the plaintiffs property with new trees. He contends that the plaintiff introduced evidence only of replacement cost as a measure of damages and that such evidence alone is insufficient to support the damage award in this case. We agree.

At common law “[i]t is an appropriate remedy [for the loss of trees] either for the recovery of damages for the mere unlawful entry upon the [defendant’s] land; for the recovery of the value of the trees removed, considered separately from the land; or for the recovery of damages to the land resulting from the special value of the trees as shade or ornamental trees while standing on the land. For a mere unlawful entry upon land nominal damages only would be awarded. If the purpose of the action is only to recover the value of the trees as chattels, after severance from the soil, the rule of damages is the market value of the trees for timber or fuel. For the injury resulting to the land from the destruction of trees which, as a part of the land, have a peculiar value as shade or ornamental trees, a different rule of damages obtains, namely, the reduction in the pecuniary value of the land occasioned by the act complained of.” Eldridge v. Gorman, 77 Conn. 699, 701, 60 A. 643 (1905); see also Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 159, 881 A.2d 937 (2005), cert. denied, 547 U.S. 1111, 126 S. Ct. 1913, 164 L. Ed. 2d 664 (2006).

“General Statutes § 52-560 permits the court to make an award for the reasonable value of the trees if the opposing party mistakenly believed that the trees were on his land. Although § 52-560 provides that the injured party in a tree cutting case is entitled to the reasonable value of any tree that was destroyed, the replacement cost of the destroyed trees is not a proper measure of damages under § 52-560. . . . Rather, the proper measure of damages is either the market value of the tree, once it is severed from the soil, or the diminution in the market value of the . . . real property caused by the cutting.” (Citation omitted; internal quotation marks omitted.) Palmieri v. Cirino, 90 Conn. App. 841, 849-50, 880 A.2d 172, cert. denied, 276 Conn. 927, 889 A.2d 817 (2005).

The court erred in measuring the plaintiffs damages by the cost of screening her property with seven new trees. Replacement value is not one of the three possible measures of damages for a loss of tree under the common law as established by current case law, and § 52-560 does not permit recovery based only on replacement value. The only evidence submitted by the plaintiff as to the measure of damages was the testimony of Grant Putnam, a landscape contract designer, who testified as to the cost of replacing the trees that the defendant had removed. Replacement value alone is not sufficient. See id., 851 (court’s award of damages for removal of trees improper where record contained no evidence regarding diminution in property value or value of trees separate from land but only contained evidence of replacement value). Accordingly, the court’s award of $11,200 to screen the property with new trees was improper.

The judgment is reversed only as to the $11,200 award of damages for the removal of the plaintiffs trees and the case is remanded with direction to render judgment awarding nominal damages to the plaintiff with respect to that loss. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       Beth Mistriel was also a defendant in this action. The court, via a supplemental order dated February 3, 2011, dismissed the action against Beth Mistriel. For clarity, we refer to Avi Mistriel only as the defendant.

       It is apparent from the memorandum of decision, and is reiterated in the judgment file, that the court found in favor of the plaintiff on its trespass count and awarded damages on that count. Although the court did not make a formal ruling on each count, as is preferable, we do not elevate form over substance and conclude that a final judgment was rendered in this case. See Rent-A-PC, Inc. v. Rental Management, Inc., 96 Conn. App. 600, 604 n.3, 901 A.2d 720 (2006).

       We are aware of statements in Ventres v. Goodspeed Airport, LLC, supra, 275 Conn. 159-60, that support the contention that replacement cost may be an appropriate remedy. An examination of these statements reveal that they are dicta. “It is well established that statements in prior cases that constitute dicta do not act as binding precedent.” (Internal quotation marks omitted.) Lewis v. Slack, 110 Conn. App. 641, 647 n.3, 955 A.2d 620, cert. denied, 289 Conn. 953, 961 A.2d 417 (2008). Although the common law may in the future be modified, we are bound by prior holdings of our Supreme Court and of this court.

       It may be that in some circumstances the diminution in market value caused by tree removal may approximate the cost of replacement. A rational purchaser wanting to buy a particular parcel only if it is screened may be willing to buy the parcel unscreened, but at a price reduced by the cost of planting the desired trees. In the present case, no such nexus was made, however, and it is not our province to infer such a connection.
      A court writing on a blank slate might reasonably hold that replacement cost is a reasonable remedy in that landscaping the property may return it to its condition prior to the trespass. As stated previously, our courts have not accepted replacement cost as a remedy in these circumstances.

       “Nominal damages are recoverable where there is a breach of a. legal duty or the invasion of a legal right and no actual damages result or where, as here, such damages are not proven. ... To obtain an award of more than nominal damages, facts must exist that afford a basis for measuring the [defendant’s] loss with reasonable certainty. The evidence must be such that the jury may find the amount of this loss by reasonable inferences from the facts established, not by conjecture, speculation and surmise. . . . This court has previously declined to remand an action for a new trial for failure to award nominal damages on the basis that [n]o purpose would be furthered by a remand because the damages to be awarded to the [defendant] against the [plaintiff] could only be nominal based upon the substantive findings of the trial court .... We will not ordinarily remand a case for the mere failure to award nominal damages. . . . Although appellate courts ordinarily will not remand a case for the failure to award nominal damages, they have not hesitated in such circumstances simply to direct the trial court to render judgment for the prevailing party for $1 in nominal damages.” (Internal quotation marks omitted.) Palmieri v. Cirino, supra, 90 Conn. App. 851 n.10.