text:
    ROBERT L. ALEXANDER v. NANCY LOU TYSON, ADMINISTRATRIX (ESTATE OF ALBERT A. ALEXANDER)
    (AC 30755)
    Harper, Lavine and Alvord, Js.

      Argued December 4, 2009
    officially released July 13, 2010

      Robert L. Alexander, pro se, the appellant (plaintiff).

      E. J. Robbin Greenspan, with whom, on the brief, was Christopher E. H. Sanetti, for the appellee (defendant).
   Opinion

HARPER, J.

The plaintiff, Robert L. Alexander, appearing pro se, appeals from the judgment of the trial court granting the oral motion for a nonsuit by the defendant, Nancy Lou Tyson, administratrix of the estate of Albert A. Alexander. The plaintiff claims that the court improperly rendered a judgment of nonsuit. We affirm the judgment of the trial court.

On June 11, 2006, the plaintiffs brother, Albert A. Alexander, died intestate, leaving a multimillion dollar estate. Following a hearing on March 14, 2007, the Probate Court appointed the defendant, the decedent’s wife, the administratrix of the decedent’s estate. The plaintiff opposed the defendant’s appointment before the Probate Court and, appearing pro se, filed an appeal from the Probate Court’s decree with the Superior Court on May 9,2007. The plaintiff had a declaratory judgment action pending in Rhode Island seeking to void the defendant’s marriage and wanted the Probate Court to wait until the action was resolved before appointing a permanent administrator.

Initially, the trial court scheduled the trial on the plaintiffs probate appeal to commence on November 12, 2008. Although the plaintiff originally had appeared pro se in filing this appeal from the Probate Court, the plaintiff eventually hired an attorney and subsequently consented to his attorney’s withdrawal a few weeks before the trial. In early November, the plaintiff filed several motions that included a request for a ninety day continuance to seek new counsel. By happenstance, on November 6, 2008, the trial court rescheduled the trial on the probate appeal to commence on January 9,2009. The court confirmed the new trial date by issuing a new notice to the parties.

On January 5, 2009, the trial court denied the plaintiffs request for a ninety day continuance. On January 7, 2009, the Superior Court caseflow coordinator called the plaintiff to confirm that the trial would proceed on January 9, 2009. On the morning of trial, the plaintiff, who lived in Maryland, telephoned the caseflow coordinator. He told her that he did not want the trial to proceed as scheduled because he was not aware until the preceding day that his motion for a continuance had been denied, there was outstanding discovery in the case, he wanted to consult a Maryland attorney about representing him pro hac vice, and he also needed to attend a funeral.

The plaintiffs request to reschedule the trial was placed on the record. The plaintiff failed to appear for trial. Upon the defendant’s oral motion, the court entered a judgment of nonsuit. On January 28, 2009, the plaintiff filed this pro se appeal.

The plaintiff first claims that the court abused its discretion when it granted the defendant’s motion for a nonsuit for his failure to appear for a scheduled trial. Specifically, the plaintiff argues that he did not receive sufficient notice of the trial date, there were outstanding motions and discovery in the case, all in violation of his due process rights, and he was not given a sufficient amount of time in which to file a trial brief. We disagree.

It is well established that “[e]ntry of a [nonsuit or] default for failure to appear for trial is a matter left to the sound discretion of the trial court. . . . Practice Book § 17-19 provides in relevant part: If a party . . . fails without proper excuse to appear in person or by counsel for trial, the party may be nonsuited or defaulted by the judicial authority.” (Citation omitted; internal quotation marks omitted.) Thompson v. Orcutt, 70 Conn. App. 427, 442, 800 A.2d 530, cert. denied, 261 Conn. 917, 806 A.2d 1058 (2002). We conclude that the court did not abuse its discretion.

At a hearing at the time of the scheduled trial, the court discussed on the record the reasons that the plaintiff gave for not appearing at trial. The court then considered the defendant’s argument that the trial already had been delayed about two months, both parties had received a notice of the new trial date, the plaintiff never objected to the new trial date, and the notice stated that there would be no continuances. The notice also stated that a trial brief needed to be filed by both parties at least one week before trial, and the plaintiff failed to comply with this order. Additionally, the defendant’s witnesses had spent their time and incurred expenses traveling from Massachusetts, New York and Virginia to be present, and, in fact, some of the witnesses were members of the plaintiffs family and had no knowledge of the funeral that the plaintiff had claimed to be attending that day.

After considering the plaintiffs reasons for his failure to appear at the scheduled trial, the court rendered a judgment of nonsuit. The court stated, “I’m doing this because this is not a situation where [the plaintiff] was represented by counsel from the start and then counsel either died or left him in the lurch. . . . [The plaintiffs] counsel asked to be relieved of his responsibilities, and that was granted with no objection from the [plaintiff] back in October. . . . And I think it would be very unfair to the [defendant] as well as the other witnesses that have appeared at this point to continue it once again based on perhaps a hope that some other attorney in Maryland would be willing to get involved in the case and then be admitted pro hac vice to represent [him], and I think that all of the factors that the court takes into consideration on when a belated last minute request for a continuance is made militate against granting that request, and, as I said, I previously denied [the plaintiff] a request for a continuance earlier this week.”

We conclude that the court did not abuse its discretion when it rendered a judgment of nonsuit against the plaintiff. “Discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. . . . The salient inquiry is whether the court could have reasonably concluded as it did. ... It goes without saying that the term abuse of discretion does not imply a bad motive or wrong purpose but merely means that the ruling appears to have been made on untenable grounds. ... In determining whether there has been an abuse of discretion, much depends upon the circumstances of each case.” (Citations omitted; internal quotation marks omitted.) State v. Arbour, 29 Conn. App. 744, 748, 618 A.2d 60 (1992).

Our review of the record reveals that the court considered the explanations provided by the plaintiff, denied the plaintiffs motion for a continuance, considered the effect of the plaintiffs conduct on others and his failure to file a trial brief. The court also considered that the plaintiff received notice of the trial date and that his request to reschedule the trial was made at the last minute. We, therefore, conclude that because the court reasonably addressed the issue and found that the plaintiff failed to appear “without proper excuse”; Practice Book § 17-19; the court did not abuse its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff also claims that the merits of his underlying probate appeal are reviewable by this court. The plaintiff claims that the Probate Court should not have appointed the defendant as administratrix because she was of questionable character and integrity and because she was never legally married to the decedent. Thus, the plaintiff asks us to review issues that were not considered or decided by the trial court. See Solomon v. Connecticut Medical Examining Board, 85 Conn. App. 854, 862, 859 A.2d 932 (2004), cert. denied, 273 Conn. 906, 868 A.2d 748 (2005). “We need not review the merits of any claim, even a constitutional claim, that is presented for the first time on appeal.” (Internal quotation marks omitted.) Id. Accordingly, we decline to review the merits of the plaintiffs underlying probate appeal.

       The Rhode Island action was dismissed.

       The plaintiff did not file a motion to open and to vacate a judgment of nonsuit pursuant to General Statutes § 52-212. The plaintiff appeals directly from the court’s judgment of nonsuit. The judgment of nonsuit is a final judgment for purposes of appeal. Gryskiewicz v. Morgan, 147 Conn. 260, 261, 159 A.2d 163 (1960).

       The plaintiff argues that the defendant’s attorney committed fraud on the court by representing to the court that there were no outstanding motions or discovery in the case and trying to dispose of the case by any means possible. There is nothing in the record to support the plaintiffs argument.

       To the extent that the plaintiff argues on appeal that he was prevented from filing his own trial brief because he did not receive the defendant’s trial brief until two days before the trial, this argument has no merit. The plaintiff had notice from the court that he was required to file a trial brief at least one week prior to trial. Moreover, although the court considered that the plaintiff failed to file a trial brief, the judgment of nonsuit was rendered as a result of his failure to appear for trial. Practice Book § 17-19.


source: Caselaw Access Project

author: LAVINE, J.

license: Public Domain

text:
    KRYSTOPHER ROMANCZAK ET AL. v. AVALONBAY COMMUNITIES, INC.
    (AC 30623)
    Flynn, C. J., and Lavine and Borden, Js.

    Argued January 7
    officially released July 13, 2010

      Robert W. Lynch, for the appellants (plaintiffs).

      Ralph S. Keen III, for the appellee (defendant).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

LAVINE, J.

This appeal involves a dispute between a landlord and two of its tenants over the landlord’s withholding certain legal fees from the tenants’ security deposit. The plaintiffs, Krystopher Romanczak and Bryan Dumelin, appeal from the judgment of the trial court, rendered after a trial to the court, in favor of the defendant, AvalonBay Communities, Inc. On appeal, the plaintiffs claim that the court improperly determined that they were in breach of the subject lease and not entitled to recover the legal fees the defendant had deducted from their security deposit. We affirm the judgment of the trial court.

In June, 2006, the plaintiffs served the defendant with a three count complaint alleging breach of contract, vexatious litigation and violation of General Statutes § 42-110a et seq., the Connecticut Unfair Trade Practices Act. Only the breach of contract count is at issue on appeal. Count one of the first amended complaint alleged the following facts, which are not in dispute. The plaintiffs and the defendant entered into a written lease agreement for a one year term from August 9, 2004, until August 8, 2005, for premises at 28102 Town Walk Drive in Hamden. The complaint also alleged that the lease is a consumer contract pursuant to General Statutes § 42-151 (b). Moreover, it was alleged that on April 11, 2005, the defendant caused a notice to quit to be served on the plaintiffs, and on April 20, 2005, the defendant brought a summary process action against the plaintiffs. In their answer to the summary process complaint, the plaintiffs alleged that they had cured their nonpayment within the time permitted under the defendant’s rent policy. The defendant prosecuted the summary process action until June 21, 2005, when it withdrew the action. The plaintiffs vacated the premises prior to the end of the lease term.

The complaint also alleged that “[a]fter the [p]laintiffs vacated the [premises, the [defendant improperly and unlawfully deducted $1,637.00 from the [p]laintiff[s’] security deposit for the cost and expense of the eviction action brought by the [defendant against the [p]lain-tiff[s].” The plaintiffs claimed that the deduction for the cost and expense of the summary process action was wrongful. Moreover, the plaintiffs claimed that “[p]ursuant to the terms of the [l]ease, the [defendant is entitled to attorney’s fees and court costs incurred in enforcing its rights under the [l]ease pursuant to [General Statutes] § 42-150bb which provides that if a consumer lease provides for the commercial party to recover its attorney’s fees, the consumer shall be awarded an attorney’s fee as a matter of law if the consumer successfully prosecutes or defends an action based upon the consumer lease.” The plaintiffs claimed that they successfully had defended the summary process action and were entitled to attorney’s fees in the amount of $1000, which they incurred to defend the action. The plaintiffs also claimed that they were entitled to recover attorney’s fees in the present action if they were successful in recovering the funds that the defendant wrongfully deducted from their security deposit. The present action was transferred from the housing session to the regular session of the Superior Court and tried to the court.

Following trial, the court issued a memorandum of decision on October 31, 2008, in which it found that the lease in question was the parties’ second lease for the term from August 9, 2004, through August 8, 2005. The plaintiffs’ monthly rent under the lease was $1349, and their security deposit was $2798. By way of letter dated April 9, 2005, the defendant notified the plaintiffs that the April, 2005 rent had not been paid. The letter stated: “Your rent is due by the close of business on the [first] of the month. In accordance with your lease agreement, we allow you a grace period. If your rent is not paid by 12 midnight on the [tenth], we will charge your account a $75 late fee. Any payments made after the [tenth] of the month must be paid by money order or cashier’s check. ... If we do not receive payment by 12 midnight on the [tenth], we will have no choice but to take legal action. Please note that if we begin legal proceedings, there are legal fees that will be charged back to you.” (Emphasis in original.)

The court found that the plaintiffs testified that they received the letter after they had made a partial rent payment by way of personal check on April 8, 2005. The court took judicial notice that April 8, 2005, was a Friday. Dumelin testified that on April 11,2005, payment in the amount of $497.99 was tendered to the defendant in the form of a bank check, which he had obtained on April 11, 2005, although the check is dated April 12, 2005. According to Dumelin, he obtained the check at a People’s Bank branch located in a Stop & Shop supermarket, after normal banking hours, and the bank would issue the check only with the next day’s date.

The court also found that on April 11,2005, the defendant served the plaintiffs with a notice to quit for nonpayment of rent. On April 20, 2005, the defendant filed a summary process action against the plaintiffs, which was withdrawn on June 21, 2005. After the plaintiffs vacated the premises, the defendant returned a portion of the plaintiffs’ security deposit along with an accounting of the various moneys that had been deducted from the security deposit. The issue in this action concerns money deducted for legal fees allegedly associated with the summary process action.

In adjudicating the issue, the court construed the relevant portions of the lease. Paragraph 5 (a) of the lease provides that rent is due and payable on or before the first day of each month; the lease also provides for a late charge to be payable in addition to the rent, if payment was made after the tenth day of the month. The court found that the “ ‘grace period’ ” for the payment of rent comports with General Statutes § 47a-15a. The lease also addressed the issue of default. Paragraph 17 provides in relevant part: “a. You will be in default under this Lease if: (1) You do not make your payment of Rent, including Other Charges, on time . . . (c) In the event of a default, in addition to the other remedies available to us under this Lease or applicable law, you agree to pay us all costs and fees, including attorney’s fees, litigation and collection costs that we incur in enforcing our rights under this Lease, to the fullest extent to which we are entitled to collect such sums from you under applicable law . . . .” Paragraph 5 (a) also provides that “[fjailure to pay Rent will give rise to an action for eviction in addition to any other remedies we may have.” The court found that the words of the lease were unambiguous.

The court also found that the plaintiffs had made only a partial payment of rent sometime before April 8, 2005. After the close of business on April 8, 2005, the plaintiffs sought to pay the balance of their rent using a “ ‘secure drop’ ” presumably maintained by the defendant. The defendant did not receive the payment until April 11, 2005. By then, the rent was late and not in the proper form of payment. The plaintiffs did not tender payment in the proper form until after the close of business on April 11, 2005. The bank check was dated April 12,2005. The court found that the plaintiffs’ failure to pay their rent before the tenth of the month constituted a breach of the lease. Due to the breach, the defendant had every right, under the lease, to serve the notice to quit and to file the summary process action. Paragraph 17 (c) of the lease provides that in the event of a default by the tenant, the tenant agrees to pay the landlord “all costs and fees, including attorney’s fees, litigation and collection costs” that the defendant incurs in the enforcement of its rights.

The court also found that the plaintiffs had a history of making partial payments of their rent prior to the late charge date. The court concluded that the plaintiffs could not afford the apartment that they had rented and that they should not have been surprised that the defendant sought to terminate their tenancy on the basis of their failure to make a timely rent payment or that the defendant would seek legal fees for the resulting summary process action. The court concluded that the plaintiffs had failed to prove by a preponderance of the evidence that the defendant breached the lease by bringing the summary process action and withholding attorney’s fees from the security deposit. The court rendered judgment in favor of the defendant.

Thereafter, the plaintiffs filed a motion to reargue solely on the issue of whether the defendant was entitled to attorney’s fees for the summary process action after it withdrew the action. To bolster their argument, the plaintiffs relied, in part, on the court’s analysis in adjudicating the vexatious litigation count of their complaint. In that respect, the court found that the defendant’s withdrawal of the summary process action was the result of an agreement reached by the parties. Also, because the defendant withdrew the action, the plaintiffs were not the prevailing parties. In their motion to reargue, the plaintiffs claimed that a party who withdraws an action on the basis of a negotiated settlement is not aprevailing party. Moreover, the plaintiffs argued that there was no evidence that the settlement provided for attorney’s fees, the defendant failed to file a motion for attorney’s fees pursuant to Practice Book § 11-21 and the housing court awarded the defendant no attorney’s fees. The plaintiffs asked the trial court to hear reargument solely on the issue of whether the defendant was entitled to attorney’s fees in the summary process action, given the court’s finding that it had been terminated by a settlement.

In its objection to the plaintiffs’ motion to reargue, the defendant argued that the motion was predicated on the plaintiffs’ assumption that the legal fees deducted from the security deposit were solely for eviction purposes without evidence to support that assumption. The defendant further argued that the legal fees deducted were related to the expenses it had incurred to enforce its rights under the lease. The defendant noted that the plaintiffs had the burden of proving that the deduction was improper and claimed that the plaintiffs never addressed the nature of the legal fees deducted or conducted discovery to ascertain the nature of the legal fees. As to the plaintiffs’ argument that the defendant failed to seek attorney’s fees from the housing court, the defendant argued, citing General Statutes § 47a-23a, that the housing court is without jurisdiction to award money damages or attorney’s fees, as it may only render a judgment of possession. The trial court summarily denied the plaintiffs’ motion to reargue, and neither party sought an articulation of the court’s decision. See Practice Book § 66-5.

The issue to be resolved is the plaintiffs’ claim that the court improperly determined that they were not entitled to recover the legal fees the defendant had deducted from their security deposit. The plaintiffs claim is twofold: (1) whether the defendant was entitled to deduct any legal fees from the security deposit and (2) whether the defendant was entitled to all of the fees that it deducted. The first claim requires us to construe the plaintiffs’ complaint and the lease, and the second to examine the evidence.

I

The plaintiffs’ first claim is that the court improperly concluded that they had failed to prove that the defendant wrongfully deducted legal fees from their security deposit. We do not agree.

In paragraph 10 of their complaint, the plaintiffs alleged, in relevant part, that “[p]ursuant to the terms of the [ljease, the [djefendant is entitled to attorney’s fees and court costs incurred in enforcing its rights under the [l[ease . . . .” The allegation that the defendant was entitled to attorney’s fees and court costs incurred in enforcing its rights under the lease constitutes a judicial admission. “[T]he admission of the truth of an allegation in a pleading is a judicial admission conclusive on the pleader. ... It is axiomatic that the parties are bound by their pleadings.” (Citations omitted; internal quotation marks omitted.) Rudder v. Mamanasco Lake Park Assn., Inc., 93 Conn. App. 759, 769, 890 A.2d 645 (2006). The plaintiffs therefore have admitted that the defendant was entitled to attorney’s fees to enforce its rights under the lease. We therefore need only to decide whether the court properly determined that the defendant was enforcing its rights under the lease.

“[A] lease is a contract, and, therefore, it is subject to the same rules of construction as other contracts. . . . The standard of review for the interpretation of a contract is well established. Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [when] there is definitive contract language, the determination of what the parties intended by their . . . commitments is a question of law [over which our review is plenary].” (Citation omitted; internal quotation marks omitted.) Bristol v. Ocean State Job Lot Stores of Connecticut, Inc., 284 Conn. 1, 7, 931 A.2d 837 (2007).

“Whether there was a breach of contract is ordinarily a question of fact. . . . We review the court’s findings of fact under the clearly erroneous standard. . . . The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed . . . .” (Internal quotation marks omitted.) Czaplicki v. Ogren, 87 Conn. App. 779, 785, 868 A.2d 61 (2005).

In construing the lease, the court found that it was clear and unambiguous. We agree. Paragraph 5 (a) provides in relevant part: “You will pay an amount equal to the Total Rent . . . due under this Lease, on or before the first day of each month . . . .” Paragraph 6 (b) provides in relevant part: “If your Rent is not paid on or before the Late Charge Date specified in the Summary [portion of the lease stating the key terms of the lease], a Late Charge in the amount specified in the Summary will be due immediately.” The summary of the lease provides that the late charge date is the eleventh of the month. Although the last sentence of paragraph 6 (b) of the lease provides that the defendant has the right to commence an eviction action to gain possession of the premises on the second day of the month if rent was not paid on the first, a letter from the defendant dated October 18, 2004, bearing the heading “rent policy reminder” informed the plaintiffs that if the defendant did not receive the monthly rent due before 9 a.m. on the eleventh of the month, the plaintiffs would receive a notice to quit.

Paragraph 17 of the lease concerns defaults and provides in relevant part: “a. You will be in default under this Lease if: (1) You do not make your payment of Rent ... on time .... c. In the event of a default, in addition to the other remedies available to us under this Lease or applicable law, you agree to pay us all costs and fees, including attorney’s fees, litigation and collection costs that we incur in enforcing our rights under this Lease . . . .”

In this case, the court found that the plaintiffs were in default or breach of the lease by failing to pay the rent due and owing the defendant on April 1, 2005, or before 9 a.m. on April 11, 2005. Under the terms of the lease, the defendant had the right to commence a summary process action upon default of the lease. The defendant, therefore, was entitled to serve the plaintiffs with a notice to quit and later to serve them with the summary process action. Moreover, paragraph 17 (c) provides that in the event of a default, such as nonpayment of rent, the defendant was entitled to recover the attorney’s fees it incurred to enforce its rights under the lease.

In raising their claim on appeal, the plaintiffs have assumed that the defendant incurred attorney’s fees as a result of the summary process action, but the plaintiffs have not directed us to any evidence that the attorney’s fees the defendant deducted were incurred only as a result of the eviction action. On the basis of this assumption, the plaintiffs have argued that the defendant was not entitled to attorney’s fees because it withdrew the eviction action and therefore was not the prevailing party. We need not address this argument, as the record does not indicate the basis of the legal fees the defendant deducted from the plaintiffs’ security deposit. The record suggests that the defendant may have had reason to seek legal counsel with respect to the plaintiffs on more than one occasion. After all, the court found that the plaintiffs were in the habit of paying their rent late. We conclude, therefore, that the court properly found that the plaintiffs had not proved that the defendant breached the lease by wrongly deducting legal fees from the plaintiffs’ security deposit.

n

The plaintiffs’ second claim is that the court erred when it concluded that they failed to demonstrate that the defendant was not entitled to the legal fees that it deducted from the security deposit. We disagree.

The following facts are relevant to the plaintiffs’ claim. When the defendant returned the plaintiffs’ security deposit, the deposit was transmitted with a statement of deposit activity, which itemized the deductions to the plaintiffs’ security deposit. One line of the itemization states: “8/28/2005 LEGAL—Legal Costs/Evictions Legal Fees $1,637.00.” The substance of the plaintiffs’ claim appears to be that there was no accounting or itemization of the $1637 legal fee.

The plaintiffs’ claim concerns the burden of proof. This is not a case in which the defendant landlord filed a motion seeking attorney’s fees but a plaintiff tenant’s challenge to the legal fees deducted from the security deposit. The burden, therefore, was on the plaintiffs to demonstrate that the defendant was not entitled to deduct all or a portion of the legal fees. See Byrne v. Grasso, 118 Conn. App. 444, 451-52, 985 A.2d 1064 (2009) (burden on plaintiff to prove basis of challenge to attorney’s fees), cert. denied, 294 Conn. 934, 987 A.2d 1028 (2010). Although the plaintiffs have cited General Statutes § 42-150aa (a), which restricts the payment of attorney’s fees provided for by a commercial lease under certain circumstances, they have not proven that the legal fees the defendant deducted from the security deposit violated the statute. The plaintiffs also correctly note that attorney’s fees permitted under the provisions of a lease must be reasonable. See Vespoli v. Pagliarulo, 212 Conn. 1, 5-6, 560 A.2d 980 (1989); Matyas v. Minck, 37 Conn. App. 321, 336, 655 A.2d 1155 (1995). The plaintiffs, however, have not brought to our attention any evidence demonstrating that the defendant was not entitled to any or all of the legal fees deducted from the security deposit because the fees were unreasonable.

We conclude, therefore, that the lease entitled the defendant to pursue certain remedies for the plaintiffs’ failure to pay rent, including eviction, and that the lease entitled the defendant to legal fees to enforce its rights under the lease. We also conclude that the plaintiffs failed to prove that the defendant’s deducting the legal fees from their security deposit was wrongful under the lease or statute. The court, therefore, properly rendered judgment in favor of the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although in their appellate brief the plaintiffs claimed that the court improperly determined that they had breached the lease, during oral argument before us, counsel for the plaintiffs represented that the plaintiffs were pursuing only their claim regarding legal fees.

       General Statutes § 42-151 (b) provides in relevant part: “A written agreement is a ‘consumer contract,’ if: (1) A consumer enters into the agreement primarily for personal, family or household purposes . . .

       General Statutes § 42-150bb provides in relevant part: “Whenever any . . . lease entered into ... to which a consumer is a party, provides for the attorney’s fee of the commercial party to be paid by the consumer, an attorney’s fee shall be awarded as a matter of law to the consumer who successfully prosecutes or defends an action or a counterclaim based upon the . . . lease. . . .”

       Paragraph 5 (a) of the lease provides in relevant part: “You will pay an amount equal to the Total Rent and Other Charges, as specified in the Summary [portion of the lease stating the key terms of the lease], including Base Rent and all other recurring monthly charges due under this Lease, on or before the first day of each month during the term of this Lease . . . .”

       Paragraph 6 (b) of the lease provides in relevant part: “Late Charge: If your Rent is not paid on or before the Late Charge Date specified in the Summary [portion of the lease stating the key terms of the lease], a Late Charge in the amount specified in the Summary will be due immediately

       General Statutes § 47a-15a provides in relevant part: “If rent is unpaid when due and the tenant fails to pay rent within nine days thereafter . . . the landlord may terminate the rental agreement in accordance with the provisions of sections 47a-23 to 47a-23b, inclusive.”

       The plaintiffs quoted from Blake v. Levy, 191 Conn. 257, 264, 464 A.2d 52 (1983): “When a lawsuit ends in a negotiated settlement or compromise, it does not terminate in the plaintiffs favor and therefore will not support a subsequent suit for vexatious litigation. . . . This conclusion recognizes that the law favors settlements, which conserve scarce judicial resources and minimize the parties’ transaction costs, and avoids burdening such settlements with the threat of future litigation.” (Citations omitted.)

       The defendant did not specify or identify the rights under the lease to which it was referring.

       In its entirety, paragraph 10 alleges that “[pjursuant to the terms of the [ljease, the [djefendant is entitled to attorney’s fees and court costs incurred in enforcing its rights under the [ljease pursuant to [General Statutes] § 42-150bb which provides that if a consumer lease provides for the commercial party to recover its attorney’s fees, the consumer shall be awarded an attorney’s fee as a matter of law if the consumer successfully prosecutes or defends an action based upon the consumer lease.”

       The summary of the key lease terms provides in relevant part: “This Summary of Key Lease Terms ... is an integral part of this Lease and is included within this Lease for all purposes.”

       The October 18, 2004 letter brought the defendant’s rent policy in line with § 47a-15a (“[i]f rent is unpaid when due and the tenant fails to pay rent within nine days thereafter”).

       General Statutes § 42-150aa (a) provides in relevant part: “The holder of any . . . lease . . . the subject of which is . . . property . . . intended to be used primarily for personal. . . purposes and which contains a provision for payment of attorney’s fees of a . . . lessor, shall not receive, claim or collect any payment for attorney’s fees (1) for an attorney who is a salaried employee of such holder or (2) prior to the commencement of a lawsuit.”


author: FLYNN, C. J.

text:
    WALTER J. PRYMAS v. CITY OF NEW BRITAIN ET AL.
    (AC 30976)
    Flynn, C. J., and Harper and Borden, Js

      Argued March 22
    officially released July 13, 2010

      Harold J. Geragosian, for the appellant (plaintiff).

      Irena J. Urbaniak, city attorney, for the appellees (defendants).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

FLYNN, C. J.

The plaintiff, Walter J. Prymas, appeals from the judgment of the trial court, rendered following a trial to the court, in favor of the defendants, the city of New Britain (city), William A. DeMaio, Sandra C. Loether and the New Britain board of parks and recreation (board). On appeal, the plaintiff claims that the court improperly failed to determine that his termination from his position of employment was unlawful because it was not authorized by the mayor of New Britain or his designee. We affirm the judgment of the trial court.

The plaintiffs appeal is based on the following record facts. On July 22, 2004, DeMaio, who was at the time the city’s acting director of parks and recreation, wrote to the plaintiff to confirm his appointment, under a six month probationary period, to the position of groundskeeper for the parks and recreation department. The plaintiffs employment, which commenced on September 8, 2004, was governed by the terms of a collective bargaining agreement (agreement) between the city and Local 1186, American Federation of State, County and Municipal Employees, Council 4, AFL-CIO. At the beginning of his employment, the plaintiff attended an orientation meeting at which he and other new employees discussed with supervisors the terms of the city’s sexual harassment, affirmative action and violence in the workplace policies and was provided copies of those policies.

The plaintiffs performance was evaluated in November, 2004, and January, 2005. The evaluations described the plaintiffs performance of his employment duties as generally favorable, but they also contained serious concerns about his inappropriate conduct, including making sexually explicit remarks and possessing pornographic material at work. DeMaio conducted fact-finding hearings on January 31 and February 2, 2005, to address the plaintiffs probationary employment status. At the conclusion of the hearings, DeMaio determined that the plaintiff had violated the city’s sexual harassment policy in that he had brought photographs of a nude woman to work on at least two occasions, displaying them to his coworkers; made sexual comments about female students at Central Connecticut State University that could be heard by a coworker during the workday; and jokingly offered to perform a sexual act on a male coworker if this would facilitate the plaintiffs purchase of the coworker’s motorcycle. DeMaio determined that the plaintiff had violated the city’s affirmative action and violence in the workplace policies by making comments to his coworkers that he “hated the Puerto Ricans living above [him] and wanted to take [his] gun and shoot them.” The plaintiff admitted this conduct during the fact-finding hearings.

On February 8, 2005, DeMaio informed the plaintiff in writing of his decision to recommend to the personnel director that, pursuant to § 4.2 (B) of the agreement, the plaintiffs employment be terminated for failure to complete the probationary period satisfactorily. DeMaio recommended in a February 8, 2005 letter to Loether, the city’s acting personnel director, that the plaintiffs employment be terminated. Loether, on the following day, approved the recommendation and sent to the plaintiff a letter stating that his employment was terminated, effective immediately, pursuant to § 4.2 (B) of the agreement.

The plaintiff thereafter filed a three count complaint against the defendants. In count one, the plaintiff alleged that the defendants’ actions “constituted a wrongful termination of the plaintiff from his employment, expressly breaching its expressed and implied agreement, were invalid and without right or color of right, and the actions were invalid and void . . . .” He claimed that the defendants had acted “illegally, arbitrarily and in the abuse of their discretion . . . [t]hey lacked the authority to terminate the plaintiff . . . [t]he [board] and/or the [m]ayor was the only possible authority possessing the power to terminate the plaintiff and did not do so . . . [and] Loether, as the [a]cting [personnel [director, did not have the power or authority to terminate the plaintiffs employment, since she possessed simply the role of ‘approval’ presumably to the board ... or to the [m]ayor as the appointing authority . . . .” The defendants’ conduct, according to the complaint, violated the plaintiffs constitutional and contractual rights, and he sought a writ of mandamus ordering the defendants to reinstate him to his former position and to compensate him for his lost wages and benefits.

Following a trial to the court, the court, Tanzer, J., rendered judgment in favor of the defendants. The court perceived that the issue in the case was whether the plaintiff “was unlawfully terminated from Ms employment as [g]roundskeeper because the [a]cting [personnel [director, Loether, terminated him rather than the [b]oard and/or the [m]ayor.” Rejecting the plaintiffs arguments to the contrary, the court, interpreting the city charter and the agreement, held that (1) under the city charter, the board had the duty to advise and consult with the parks and recreation department head and to make policy, but it did not possess the power to appoint or remove employees; (2) although the charter conferred on the mayor the power to terminate a probationary employee, neither the charter nor the agreement mandated that oMy the mayor had the power to do so; (3) the language of the agreement was controlling, as § 5-6 (b) of the charter authorized the mayor or Ms designee to terminate any employee “except as otherwise provided by,” inter alia, the agreement; (4) the oMy evidence presented as to who had the authority to appoint the plaintiff indicated that it was DeMaio, as demonstrated by Ms July 22, 2004 letter to the plaintiff and a report of personnel action concerning the plaintiff dated February 10,2005, that DeMaio signed as “Department Head/Appointing Authority”; (5) DeMaio had the power to recommend, and Loether the power to approve, the plaintiffs termination, and the termination was not illegal or violative of due process; and (6) the “evidence abundantly shows that, in the course of Ms probationary employment, [the plaintiff] engaged in conduct that provided cause for Ms termination as stated in DeMaio’s letter to [the plaintiff] of February 8, 2005.” The present appeal followed.

On appeal, the plaintiff claims that the court improperly determined that Ms termination from employment was not unlawful. He argues that the city charter expressly confers the power to terminate an employee exclusively on the mayor or the mayor’s designee. He further contends that the department head and the personnel director are not authorized by the agreement to terminate employment, but only to recommend termination and to approve the recommendation, respectively.

We note initially our standard of review. The plaintiffs claim involves interpretation of the city charter and the agreement. The interpretation of a city charter requires the application of principles of statutory construction and, therefore, presents a question of law, over which our review is plenary. See Kelly v. New Haven, 275 Conn. 580, 607, 881 A.2d 978 (2005). We interpret collective bargaining agreements guided by principles of contract law. Poole v. Waterbury, 266 Conn. 68, 87-88, 831 A.2d 211 (2003). “The intent of the parties as expressed in a contract is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity .... Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms. . . . [T]he mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous. . . .

“[I]n construing contracts, we give effect to all the language included therein, as the law of contract interpretation . . . militates against interpreting a contract in a way that renders a provision superfluous. ... If a contract is unambiguous within its four comers, intent of the parties is a question of law requiring plenary review. . . . When the language of a contract is ambiguous, the determination of the parties’ intent is a question of fact, and the trial court’s interpretation is subject to reversal on appeal only if it is clearly erroneous.” (Citations omitted; internal quotation marks omitted.) Honulik v. Greenwich, 293 Conn. 698, 710-11, 980 A.2d 880 (2009). In the present case, the relevant language of the agreement is not ambiguous, and, therefore, our standard of review is plenary.

Our inteipretation of the interplay between municipal charter provisions and collective bargaining agreements entered into by municipal employers and bargaining agents for certain municipal employees is controlled by the Municipal Employees Relations Act, General Statutes §§ 7-460 to 7-479 and, in particular, General Statutes § 7-474 (f). That statutory section provides that, in the event of a conflict between any special act or charter provision and a collective bargaining agreement, the agreement will control.

At the center of the plaintiffs claim that his employment was terminated illegally is his argument that the authority to remove city employees rests solely in the office of the mayor. He maintains that “[t]here is no conflict between the [c]harter and the [agreement] in accordance with [§] 7-474 (f) since they work in harmony: under the [agreement] the [department head] ‘recommends’ and the personnel director ‘approves’ while under the [c]harter the ultimate authority empowered to ‘terminate’ ” is the mayor.

Section 5-6 of the city charter, titled “Removal and Discipline of Officials and Employees,” provides in relevant part: “(b) Employees of the [c]ity. The [m]ayor or designee may terminate the employment of and discipline any employee of the [c]ity except as otherwise provided by the General Statutes, this [c]harter or collective bargaining agreement, where applicable. . . .” The plaintiff argues that this section “expressly confers [the] authority” to terminate an employee “only in the mayor or his designee.” We do not read the charter language in the same manner as does the plaintiff. As the court recognized, the provision authorizes the mayor or the mayor’s designee to terminate the employment of any employee, “except as otherwise provided by” the General Statutes, another provision of the charter or the agreement. Contrary to the plaintiffs contention, there is nothing in the language of the provision that limits the authority of termination to the mayor or the mayor’s designee. Indeed, § 5-6 (b) of the charter itself references exceptions to such exclusive termination authority, recognizing instances where the agreement will control.

The plaintiff also contends that the agreement does not give the personnel director the authority to terminate the employment of an employee. Section 4.2 (B) of the agreement provides: “At any time during the initial probationary period, the [department [h]eadmay recommend in writing to the [personnel [director the removal of an employee, if in his/her opinion, the working test indicates that such employee is unable or unwilling to perform the duties of the position satisfactorily or that his/her habits and dependability do not merit his/her continuance in the service. Such recommendation of the [department [h]ead and the reasons therefore shall be in writing to the [pjersonnel [djirector with a copy to the employee and to the [ujnion if it requests it. No employee shall be removed from a position during his/her probationary period without the approval of the [pjersonnel [djirector. The employee, if removed, shall not have any right to be restored to the eligibility list from which he/she was appointed.”

The plaintiff argues that this section “permits the department head to ‘recommend’ the ‘removal’ of an employee to the personnel director, and the latter may make an ‘approval’ of the ‘recommendation.’ It does not authorize her to terminate an employee.” We disagree with the plaintiffs interpretation of the provision. While the language of § 4.2 (B) of the agreement might have been drafted more explicitly, for example, to have stated that approval of the personnel director is tantamount to termination of an employee’s employment, the language as it stands permits a reasonable inference that upon the recommendation of the department head, the personnel director may terminate a probationary employee by approving such recommendation. It clearly outlines a procedure where a department head “[ajt any time” during the probationary period may recommend to the personnel director “the removal” of an employee if he performs duties unsatisfactorily or his habits do not merit continuance in service. The provision then states that no such probationary employee may be removed from employment “without the approval of the [pjersonnel [djirector.” The agreement contains no requirement that the mayor or any other city official take further action to effect the removal or discharge of such an employee. The final sentence indicates than any such employee “if removed” shall forfeit any right to be restored to the eligibility list from which he was appointed.

In this case, the department head recommended the removal of the plaintiff, and the personnel director approved his recommendation. Pursuant to § 4.2 (B) of the agreement, no further action was necessary. The plaintiff was terminated from his employment. We conclude that the court properly concluded that the plaintiff was properly and effectively discharged.

The judgment is affirmed.

In this opinion the other judges concurred.

       Section 4.2 (B) of the agreement provides: “At any time during the initial probationary period, the [department [h]ead may recommend in writing to the [personnel [d]irector the removal of an employee, if in his/her opinion, the working test indicates that such employee is unable or unwilling to perform the duties of the position satisfactorily or that his/her habits and dependability do not merit his/her continuance in the service. Such recommendation of the [department [h]ead and the reasons therefore shall be in writing to the [p]ersonnel [d]irector with a copy to the employee and to the [ujnion if it requests it. No employee shall be removed from a position during his/her probationary period without the approval of the [personnel [d]irector. The employee, if removed, shall not have any right to be restored to the eligibility list from which he/she was appointed.”

       In count two of the complaint, the plaintiff alleged that DeMaio knowingly had made defamatory and false statements concerning the plaintiff during the fact-finding hearings and in the letter to Loether. The complaint’s third count stated a claim for indemnification of the individual defendants by the city pursuant to General Statutes § 7-465. The plaintiff abandoned these claims at trial.

       Section 5-6 (b) of the city charter, titled “Employees of the [c]ity,” provides: “The [m]ayor or designee may terminate the employment of and discipline any employee of the [c]ity except as otherwise provided by the General Statutes, this [cjharter or collective bargaining agreement, where applicable.”

       General Statutes § 7-474 (f) provides in relevant part: “Where there is a conflict between any agreement reached by a municipal employer and an employee organization and approved in accordance with the provisions of sections 7-467 to 7-477, inclusive, on matters appropriate to collective bargaining, as defined in said sections, and any charter, special act, ordinance, rules or regulations adopted by the municipal employer or its agents such as a personnel board or civil service commission . . . the terms of such agreement shall prevail . . . .”


author: BEACH, J.

text:
    STATE OF CONNECTICUT v. JAMES C. HARRIS
    (AC 30060)
    Bishop, Beach and Alvord, Js.
    Argued March 15
    officially released July 13, 2010

      John F. O’Brien, for the appellant (defendant).

      John A. East III, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Anthony J. Spinella, assistant state’s attorney, for the appellee (state).
   Opinion

BEACH, J.

The defendant, James C. Harris, appeals from the judgment of conviction following his conditional plea of nolo contendere to one count of possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a). The plea followed the trial court’s denial of the defendant’s motion to suppress evidence that the police seized from a utility or storage closet in the hallway of an apartment building where the defendant lived. The defendant claims that the court’s denial of his motion to suppress was improper because he had an objectively reasonable and subjective expectation of privacy in the closet that was searched by the police. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. The defendant was arrested on August 28,2007, and charged with one count of possession of narcotics in violation of General Statutes § 21a-279 (a), one count of possession of narcotics within 1500 feet of a licensed day care center in violation of § 2 la-279 (d), one count of operation of a drug factory in violation of § 21a-277 (c), one count of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), one count of possession of narcotics with intent to sell in violation of General Statutes § 21a-278a (b) and one count of possession of narcotics with intent to sell within 1500 feet of a licensed day care center in violation of § 2 la-277 (a). On May 20, 2008, the defendant filed a motion to suppress the evidence, which consisted of more than one pound of crack cocaine that was found in a hallway closet in the building where he resided and served as the superintendent.

On May 23, 2008, the court, Nazzaro, J., conducted a hearing on the defendant’s motion to suppress. The parties stipulated to the following facts: “The [defendant ... is charged with six counts of narcotics offenses . . . relating to his alleged possession of a quantity of crack cocaine found in a utility or storage closet in the second floor hallway of an efficiency apartment building where the defendant lived. The defendant lived in apartment six, 84 Bumside Avenue, East Hartford .... On August 22, 2007, police officers and detectives with the statewide narcotics task force executed a search warrant on the premises belonging to [the defendant]. The defendant’s apartment is on the second floor of the building. A corridor on the second floor lies between six apartments. Three apartments are on each side of the hallway. Approximately thirty-nine feet from the defendant’s apartment doorway lay a ‘utility closet.’ The closet sits between two front end apartments that overlook Bumside Avenue on the south side of the building. The closet door is ordinarily but not always locked. Not all of the keys to the closet were accounted for at the time of the search. The closet was not an extension of the defendant’s apartment. The accused did not have exclusive control over the closet. His name was not listed on the door of the closet. There was no name, number or other information on the closet door. The closet door, itself, is distinguished from the doors which access the eight apartments in that the closet door was ‘substantially narrower’ than the apartment doors. The building was owned by another individual [who] . . . also had access to the closet. The police learned that the defendant was also the superintendent for the apartments and had keys to all the doors in the building on a key ring.

“At approximately 11:00 a.m., members of the task force executed a warrant to search the defendant’s apartment. The police also searched one or more automobiles thought to be associated with the defendant. In addition, the police searched the defendant, himself, who was home at the time the warrant was executed. A ‘white powder residue on a single razor blade’ was found in the defendant’s residence.

“After searching the defendant’s apartment, an officer with a canine entered the hallway where the canine, Zoey, began to pull the officer. The canine pulled the officer toward [the] maintenance closet approximately thirty-nine feet away from the defendant’s apartment door. Once at the door, the canine began to alert [the officer] to the presence of drugs within the closet. The door was locked. Officers then obtained the key to the closet from the defendant’s key ring. Members of the task force unlocked the door. Once inside, the police found approximately 1.1 pounds of suspected crack cocaine.”

The court issued its decision on the defendant’s motion to suppress on May 23, 2008. On the basis of the stipulated facts, the court determined that the defendant’s admission that he lacked exclusive access to the closet prevented him from claiming that he had a subjective expectation of privacy in the closet, and, thus, he lacked standing to challenge the search of the closet and the seizure of the narcotics. Accordingly, the court denied the defendant’s motion to suppress. The defendant subsequently entered a conditional plea of nolo contendere to one count of possession of narcotics with intent to sell in violation of § 21a-277 (a) and was sentenced to five years imprisonment and five years of special parole. This appeal followed.

On appeal, the defendant claims that the court improperly determined that he did not have an objectively reasonable or subjective expectation of privacy in the hallway closet. We disagree.

“Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision .... We undertake a more probing factual review when a constitutional question hangs in the balance.” (Citation omitted; internal quotation marks omitted.) State v. Burroughs, 288 Conn. 836, 843, 955 A.2d 43 (2008).

“The touchstone to determining whether a person has standing to contest an allegedly illegal search is whether that person has a reasonable expectation of privacy in the invaded place. Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978); State v. Joyce, 229 Conn. 10, 20, 639 A.2d 1007 (1994). Absent such an expectation, the subsequent police action has no constitutional ramifications. State v. Mooney, 218 Conn. 85, 94, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991); State v. Brown, 198 Conn. 348, 355, 503 A.2d 566 (1986). In order to meet this rule of standing ... a two-part subjective/ objective test must be satisfied: (1) whether the [person contesting the search] manifested a subjective expectation of privacy with respect to [the invaded premises]; and (2) whether that expectation [is] one that society would consider reasonable. . . . This determination is made on a case-by-case basis. . . . Whether a defendant’s actual expectation of privacy ... is one that society is prepared to recognize as reasonable involves a fact-specific inquiry into all the relevant circumstances. . . . State v. Joyce, supra, 20. Furthermore, [t]he defendant bears the burden of establishing the facts necessary to demonstrate a basis for standing; State v. Callari, 194 Conn. 18, 23, 478 A.2d 592 (1984), cert. denied, 469 U.S. 1210, 105 S. Ct. 1178, 84 L. Ed. 2d 327 (1985); and the trial court’s finding [on the question of standing] will not be overturned unless it is legally or logically inconsistent with the facts found or involves an erroneous rule of law.” (Internal quotation marks omitted.) State v. Hill, 237 Conn. 81, 92-93, 675 A.2d 866 (1996).

After a thorough review of the record, we conclude that the defendant did not establish a subjective expectation of privacy in the hallway closet. The defendant did not testify at the hearing on the motion to suppress. The parties submitted a joint stipulation of facts that did not suggest that the defendant had manifested a subjective expectation of privacy with respect to the closet. Furthermore, the defendant conceded at oral argument that there was no testimony that he held a subjective expectation of privacy in the hallway closet. It was the defendant’s burden to establish the facts necessary to prove that he had standing to contest the search of the hallway closet. He has failed to meet that burden under the first prong of the test for standing. Accordingly, we conclude that the court did not improperly deny the defendant’s motion to suppress.

The judgment is affirmed.

In this opinion the other judges concurred.

         The defendant also claims that there was insufficient evidence to convict him of possessing the narcotics found in the hallway closet. Because the defendant entered a plea of nolo contendere, he waived all nonjurisdictional claims other than the specifically designated claim. We therefore will not review his claim of evidentiary insufficiency. State v. Palkimas, 116 Conn. App. 788, 795-96, 977 A.2d 705 (2009) (when defendant enters plea of nolo contendere conditional on right to appeal from denial of motion to suppress, appeal limited to whether court properly denied motion to suppress).


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. ANTHONY CARTER
    (AC 30281)
    DiPentima, C. J., and Gruendel and Dupont, Js.
    Argued April 19
    officially released July 13, 2010

      Anthony Carter, pro se, the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, was Gail P. Hardy, state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The pro se defendant, Anthony Carter, appeals from the judgment of the trial court denying his motion to correct an illegal sentence filed pursuant to Practice Book § 43-22. He challenges the propriety of that determination in light of his allegation that the court, in sentencing him, relied on inaccurate information. We affirm the judgment of the trial court.

The defendant’s prosecution arose from “the terrible consequences of a drug turf war,” in which a stray bullet fired from the defendant’s gun struck and seriously injured a seven year old girl. State v. Carter, 84 Conn. App. 263, 265, 853 A.2d 565, cert. denied, 271 Conn. 932, 859 A.2d 931 (2004), cert. denied, 544 U.S. 1066, 125 S. Ct. 2529, 161 L. Ed. 2d 1120 (2005). Following a jury trial, the defendant was convicted of assault in the first degree in violation of General Statutes § 53a-59 (a) (5), attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (5), risk of injury to a child in violation of General Statutes § 53-21 (a) (1) and criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1), and the court rendered judgment accordingly. The court sentenced the defendant to a total effective term of twenty-seven years incarceration.

A direct appeal to this court followed. In affirming the judgment of conviction, we concluded, inter alia, that the evidence adduced at trial was sufficient to establish that the defendant “shot the victim.” Id., 270. The defendant thereafter filed a petition for a writ of habeas corpus in which he raised fourteen claims, including one of actual innocence. The habeas court denied that petition and subsequently denied the petition for certification to appeal. This court dismissed the appeal from that judgment in Carter v. Commissioner of Correction, 106 Conn. App. 464, 942 A.2d 494, cert. denied, 288 Conn. 906, 953 A.2d 651 (2008). The defendant later filed a second petition for a writ of habeas corpus, which the habeas court denied on res judicata grounds. This court dismissed the defendant’s appeal therefrom due to the lack of an adequate record. Carter v. Commissioner of Correction, 109 Conn. App. 300, 307, 950 A.2d 619 (2008).

On November 21, 2007, the defendant filed a motion to correct an illegal sentence predicated on his allegation that the trial judge at sentencing relied on inaccurate information. Specifically, the defendant maintained that the court improperly considered an argument that the prosecutor made to the jury during closing argument that certain evidence suggested that the defendant had fired a nine millimeter firearm. In so doing, he expressly relied on the decision of this court in State v. McNellis, 15 Conn. App. 416, 444, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988), in which we stated that “[sentences imposed in an illegal manner have been defined as being ‘within the relevant statutory limits but . . . imposed in a way which violates defendant’s right ... to be addressed personally at sentencing and to speak in mitigation of punishment ... or his right to be sentenced by a judge relying on accurate information or considerations solely in the record, or his right that the government keep its plea agreement promises . . . .’ [8A J. Moore, Federal Practice (2d Ed. 1984) para. 35.03 [2], pp. 35-36 through 35-37].” (Emphasis added.) In response, the state filed an opposition and a hearing followed on May 12, 2008.

On July 8,2008, the court rendered its decision orally, stating in relevant part: “I have reviewed all of the exhibits admitted on May 12, 2008; I’ve read them in their entirety. I’ve also read the transcript of the May 12, 2008 hearing. . . . And also, most importantly, I’ve reviewed the complete transcript of the sentencing proceeding conducted by this court . . . almost six years ago, on August 2, 2002. And I have read and reread the presentence investigation report. As I stated at that time, the presentence report was indeed a very thorough and comprehensive report prepared by the [office] of adult probation. And in that report is a statement of the defendant’s position; that is, Mr. Carter’s position. And under [his] version and much of what was raised in this motion was discussed and that was set forth in that portion of the presentence report. I’ve also . . . taken judicial notice of the court file, and I’ve read the motion, the objection, the briefs, the reply and including the last supplemental pleading filed by the [defendant] on May 16, 2008. I have also reviewed the authorities which are set forth in the pleadings, the documents that have been filed. Based on my complete review, very frankly, I can find absolutely no support whatsoever for [the defendant’s] claim on the instant motion. . . . [J]ust reviewing the record in this matter and all of the exhibits, there is just nothing whatsoever to indicate that the court was furnished or relied on any misstated or fallacious or inaccurate information. ... On that basis, the court feels compelled to deny the motion and to sustain the state’s objection thereto. The court can find no basis in the record or in the law on which to rule otherwise.” From that judgment, the defendant appeals.

“We review claims that the court improperly denied the defendant’s motion to correct an illegal sentence under an abuse of discretion standard.” (Internal quotation marks omitted.) State v. Henderson, 93 Conn. App. 61, 66, 888 A.2d 132, cert. denied, 277 Conn. 927, 895 A.2d 800 (2006). “In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.” (Citations omitted.) State v. Leonard, 31 Conn. App. 178, 190, 623 A.2d 1052, cert. granted on other grounds, 226 Conn. 912, 628 A.2d 985 (1993) (appeal withdrawn January 7, 1994).

On our careful review of the record, we cannot conclude that the court abused its discretion in the present case. The record is bereft of any indication that the court actually relied on the allegedly inaccurate information at sentencing. See State v. Parker, 295 Conn. 825, 843 n.12, 992 A.2d 1103 (2010) (sentencing court demonstrates actual reliance on misinformation when court gives explicit attention to it, bases sentence at least in part on it or gives specific consideration to information before imposing sentence). In that respect, we note that Judge Mulcahy presided over the defendant’s trial, his sentencing and the motion to correct an illegal sentence now before us. We credit his diligent review of the relevant proceedings. We further note that the allegedly inaccurate information on which the defendant’s motion is predicated is a statement made by the prosecutor during summation at trial. Such comments do not constitute evidence; Vajda v. Tusla, 214 Conn. 523, 538, 572 A.2d 998 (1990); State v. Pagan, 75 Conn. App. 423, 430, 816 A.2d 635, cert. denied, 265 Conn. 901, 829 A.2d 420 (2003); as the court acknowledged in its oral decision. Absent evidence to the contrary, we presume that the court properly applied that law. See Farrell v. Farrell, 36 Conn. App. 305, 313, 650 A.2d 608 (1994). Indulging every reasonable presumption in favor of the court’s ruling as our standard of review requires, we conclude that the court did not abuse its discretion in denying the motion to correct.

The judgment is affirmed.

       Practice Book § 43-22 provides: “The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.”

       The defendant’s claim centers on his assertion that certain evidence introduced during a subsequent habeas proceeding established that he had fired a .45 caliber firearm, rather than a nine millimeter one. His claim overlooks the fact that the crime of which he was convicted regarding the shooting of the victim required the state to prove, beyond a reasonable doubt, only that he discharged “a firearm.” See General Statutes § 53a-59 (a) (5) (“[a] person is guilty of assault in the first degree when . . . with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of the discharge of a firearm”). It further confounds the fact that this court, in his direct appeal, concluded that the evidence adduced at trial was sufficient to establish that the defendant “shot the victim.” State v. Carter, supra, 84 Conn. App. 270.

       In State v. Pagan, 75 Conn. App. 423, 430 n.9, 816 A.2d 635, cert. denied, 265 Conn. 901, 829 A.2d 420 (2003), this court noted that “[djuring oral argument, the assistant state’s attorney brought to this panel’s attention, the case of State v. Francis, 69 Conn. App. 378, 793 A.2d 1224, cert. denied, 260 Conn. 935, 802 A.2d 88, cert. denied, 637 U.S. 1056, 123 S. Ct. 630, 154 L. Ed. 2d 536 (2002). In Francis, the panel held that the trial court lacked jurisdiction to consider the defendant’s claim under Practice Book § 43-22 where the motion to correct the illegal sentence did not attack the validity of the sentence as exceeding the maximum statutory limits, did not violate a mandatory minimum sentence, did not violate double jeopardy rights and was neither ambiguous nor internally contradictory. Id., 384. The holding in Francis is not consistent with State v. McNellis, supra, 15 Conn. [App.] 444. McNellis has not been overruled by an en banc panel of this court or by our Supreme Court.” See also State v. Dixson, 93 Conn. App. 171, 176 n.6, 888 A.2d 1088, cert. denied, 277 Conn. 917, 895 A.2d 790 (2006); State v.
        Lawrence, 91 Conn. App. 765, 774 n.10, 882 A.2d 689 (2005), aff'd, 281 Conn. 147, 913 A.2d 428 (2007).
      The conflict has ended. State v. Parker, 295 Conn. 825, 992 A.2d 1103 (2010), provided our Supreme Court with an “opportunity to directly address [a claim that a sentence was imposed in an illegal maimer] under [Practice Book] § 43-22 [on which] there is a split of authority in the Appellate Court as to whether trial courts have jurisdiction to correct sentences on that basis . . . .” Id., 833-34. In resolving that query in the affirmative, the court cited McNeUis with approval and quoted that decision in setting forth the distinction between an illegal sentence and a sentence imposed in an illegal manner. Id., 838-40. The court thereafter stated that “due process precludes a sentencing court from relying on materially untrue or unreliable information in imposing a sentence.” Id., 843. In light of that statement and mindful that the issue of subject matter jurisdiction is resolved with the presumption in favor of entertaining the action; State v. Alexander, 269 Conn. 107, 112-13, 847 A.2d 970 (2004); we reject the state’s alternative assertion that the appeal must be dismissed for lack of jurisdiction.


author: DiPENTIMA, C. J.

text:
    AMY S. NG v. WAL-MART STORES, INC.
    (AC 30884)
    DiPentima, C. J., and Gruendel and Dupont, Js.
    Argued April 19
    officially released July 13, 2010

      Kenneth A. Votre, with whom, on the brief, was Michele D. Sensale, for the appellant (plaintiff).

      Anita M. Varanes, with whom was Timothy P. Knotts, for the appellee (defendant).
   Opinion

DiPENTIMA, C. J.

The plaintiff, Amy S. Ng, appeals following the denial of her motions to set aside the verdict and for additur. On appeal, the plaintiff claims that the trial court abused its discretion in (1) denying her motion to set aside the verdict as to noneconomic damages because it was inconsistent with the economic damages and (2) denying her motion for additur. Because the plaintiff has not provided us with transcripts of the trial proceeding, we cannot determine that the court abused its discretion in denying her motions. We therefore affirm the judgment of the trial court.

On June 29, 2006, the plaintiff filed an amended complaint alleging the following facts. On or about December 21, 2000, the plaintiff was waiting in the checkout line at the store of the defendant, Wal-Mart Stores, Inc., in Manchester. A large, heavy box containing an office chair fell off of the conveyer belt and onto the plaintiff after an employee had moved the conveyer belt forward. As a result of the box striking the plaintiff, she suffered injury to her left wrist and right upper extremity, including sustained distal radioulnar instability, requiring surgery and other medical treatment.

On July 5, 2006, following a trial before a jury, a verdict was returned for the plaintiff, awarding $2335.13 in economic damages and zero noneconomic damages. On July 18, 2006, the plaintiff filed an amended motion to set aside the verdict as to damages and a motion for additur. Subsequently, the defendant filed objections to both motions and on October 20, 2006, the court denied the plaintiffs motion for additur and amended motion to set aside the verdict. On March 16, 2009, the plaintiff filed this appeal.

The plaintiff claims that the court abused its discretion in denying her motion to set aside the verdict. She argues that the jury’s decision to award zero noneco-nomic damages is inconsistent with the jury’s finding of economic damages for medical expenses because pain and suffering is necessarily directly connected to medical expenses. The plaintiff also claims that the court abused its discretion in denying her motion for additur. She argues that the jury’s verdict is factually inconsistent and contradictory, and that the damages awarded are inadequate to compensate her medical expenses.

We do not disturb a trial court’s decision on a motion to set aside a verdict in the absence of clear abuse of discretion. Monti v. Wenkert, 287 Conn. 101, 110-11, 947 A.2d 261 (2008). Our Supreme Court has instructed that “[t]he trial court’s refusal to set aside the verdict is entitled to great weight and every reasonable presumption should be indulged in favor of its correctness. . . . This is so because [f]rom the vantage point of the trial bench, a presiding judge can sense the atmosphere of a trial and can apprehend far better than we can, on the printed record, what factors, if any, could have improperly influenced the jury.” (Citations omitted; internal quotation marks omitted.) Skrzypiec v. Noonan, 228 Conn. 1, 10-11, 633 A.2d 716 (1993).

We also review a trial court’s decision on a motion for additur under an abuse of discretion standard. “[I]t is the court’s duty to set aside the verdict when it finds that it does manifest injustice, and is . . . palpably against the evidence. . . . The only practical test to apply to a verdict is whether the award of damages falls somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case, or whether the verdict so shocks the sense of justice as to compel the conclusion that the jury [was] influenced by partiality, mistake or corruption. . . . [A] court’s decision to set aside a verdict and to order an additur ... is entitled to great weight and every reasonable presumption should be given in favor of its correctness. ... In determining whether the court abused its discretion, therefore, we decide only whether, on the evidence presented, the court reasonably could have decided that the jury did not fairly reach the verdict it did. To do so, we must examine the evidential basis of the verdict itself . . . .” (Internal quotation marks omitted.) Silva v. Walgreen Co., 120 Conn. App. 544, 550-51, 992 A.2d 1190 (2010).

The record on appeal does not allow us to review the evidence that was before the jury. The record before us consists solely of the pleadings and exhibits entered at trial. It contains no transcripts of any kind. Such a record does not allow a proper evaluation of the relative strengths of the plaintiffs and defendant’s cases. We are mindful of the dilemma encountered by the plaintiffs counsel in a case such as this, who was faced with the burden of the expense of producing a lengthy trial transcript on appeal. This considerable burden of expense, however, does not relieve an appellant of his obligation to provide this court with an adequate record on which to decide the issues on appeal. See Forrestt v. Koch, 122 Conn. App. 99, 111, 996 A.2d 1236 (2010); see also Practice Book § 61-10.

We note that, having heard all the testimony in the case, the trial court “is in the best position to assess the credibility of the witnesses testifying before it.” (Internal quotation marks omitted.) Nashid v. Andrawis, 83 Conn. App. 115, 118, 847 A.2d 1098, cert. denied, 270 Conn. 912, 853 A.2d 528 (2004). Having reviewed the record that is available to us and the arguments of the parties on appeal, we cannot determine that the court abused its discretion in denying the plaintiffs motions to set aside the verdict and for additur.

The judgment is affirmed.

In this opinion the other judges concurred.

       On July 6,2006, the defendant submitted a request for a collateral source hearing. On November 8,2006, the plaintiff filed an appeal from the judgment on the verdict. That appeal, however, was dismissed for lack of a final judgment on February 7, 2007, because the trial court had not rendered a final decision as to collateral source payments at the time the appeal was filed. See General Statutes § 52-225a; Smith v. Otis Elevator Co., 33 Conn. App. 99, 100, 633 A.2d 731 (1993). On February 23, 2009, the parties filed a “stipulation for judgment,” which was granted by the court. The stipulation reflected the parties’ agreement as to the amount by which the verdict would be reduced due to collateral source payments. The stipulation resolved the outstanding collateral source issue, and, thus, the judgment became final. On March 16, 2009, the plaintiff filed this appeal.


author: ROBINSON, J.

text:
    STATE OF CONNECTICUT v. SARAH CHRISTINE WAHAB
    (AC 28753)
    Flynn, C. J., and Robinson and West, Js.

      Argued November 18, 2008
    officially released July 20, 2010

      Sarah Christine Wahab, pro se, the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Adam B. Scott, supervisory assistant state’s attorney, for the appellee (state).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

ROBINSON, J.

The pro se defendant, Sarah Christine Wahab, appeals from the trial court’s denial of her motion to open the judgment rendered against her for possession of alcoholic liquor by a minor in violation of General Statutes (Rev. to 2007) § 30-89. On appeal, the defendant claims that the denial of her motion to open was an abuse of discretion because she was induced to pay the fine associated with that infraction as a result of the fraud, coercion and duress caused by the actions of the Manchester police department. We conclude that the defendant has not provided this court with an adequate record for our review and that her claim is briefed inadequately; we, therefore, decline to review this claim. Accordingly, the judgment of the trial court is affirmed.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. On March 3, 2007, the defendant was issued a complaint ticket charging her with the infraction of possession of alcoholic liquor by a minor in violation of § 30-89 (b) for her conduct during a party that took place in Manchester. According to the police report, the defendant was one of thirty-two people at the party, only two of the attendees were of age to consume alcohol, and five dozen containers of beer and assorted drug paraphernalia were seized by police.

The ticket issued to the defendant for her infraction carried with it a total fine of $136, which included both the fine for the infraction and the fees and costs associated with it. On March 4,2007, the defendant’s mother, Christine Sands, appears to have mailed a check in the amount of $136 to the centralized infractions bureau (bureau), along with the complaint ticket. The ticket provided that the defendant was to check either the box reading, “I elect to pay the amount,” or the box reading, “I elect to plead not guilty,” and also required that the defendant sign the ticket. The defendant did not mark either of the boxes, nor did she sign the ticket. On the front of the ticket, it appears that the defendant’s mother wrote: “If Sarah’s record is noted, Note we completely disagree.” The ticket and the check were received by the bureau on March 14, 2007.

The defendant received notice from the commissioner of motor vehicles on March 26, 2007, that her driver’s license was being suspended for a period of 150 days pursuant to General Statutes (Rev. to 2007) § 14-llle. On April 4, 2007, the defendant’s mother filed a motion to open the judgment on the defendant’s behalf, as the defendant was still a minor at the time. Along with the motion, the defendant’s mother submitted a letter in support of the motion. She stated in the letter that her daughter had intended to plead not guilty to the infraction but was told more than once by officers on the scene that everyone present was guilty even if they had not been drinking and that if she pleaded not guilty she would lose the case, which would cost her hundreds of dollars in court costs. She also listed the driver’s license suspension as an additional “injustice from the police” and claimed that the teenagers involved “now have a record.” The same day that it was filed, the motion to open was denied by the court. This appeal followed.

The defendant avers that the court improperly denied her motion to open the judgment of her infraction for possession of alcohol by a minor. Specifically, she appears to argue that the court should have opened the judgment because her decision to pay the fine was induced by the fraud, coercion and duress caused by the actions of the Manchester police department. The state asserts that the court lacked subject matter jurisdiction to consider the defendant’s motion to open the judgment or, in the alternative, that the court did not abuse its discretion in denying the motion. We conclude that the record is inadequate for our review.

“It is incumbent upon the appellant to take the necessary steps to sustain its burden of providing an adequate record for appellate review. [Practice Book § 60-5] .... It is not the function of this court to find facts. . . . Our role is ... to review claims based on a complete factual record developed by a trial court.” (Internal quotation marks omitted.) State v. Cotto, 111 Conn. App. 818, 821, 960 A.2d 1113 (2008) (declining to resolve jurisdictional question because record inadequate). Moreover, “[o]ur role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the appellant’s claim] would be entirely speculative.” (Internal quotation marks omitted.) Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 608-609, 710 A.2d 190 (1998). “It is, therefore, the responsibility of the appellant to move for an articulation or rectification of the record where the trial court has failed to state the basis of a decision . . . .” (Internal quotation marks omitted.) Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 232, 828 A.2d 64 (2003). “It is well established that [a]n articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification. . . . [P]roper utilization of the motion for articulation serves to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal.” (Internal quotation marks omitted.) Stone-Krete Construction, Inc. v. Eder, 280 Conn. 672, 685-86, 911 A.2d 300 (2006). “[W]e will, in the absence of a motion for articulation, assume that the trial court acted properly.” (Internal quotation marks omitted.) Berglass v. Berglass, 71 Conn. App. 771, 789, 804 A.2d 889 (2002).

In this case, the defendant filed a motion requesting that the court open the judgment, which the court denied without issuing an oral or written decision. Further complicating this issue is the statutory scheme under which infractions are adjudicated. General Statutes § 51-164n (c) provides in relevant part: “If any person who is alleged to have committed an infraction . . . elects to pay the fine and any additional fees or costs established for such infraction ... he shall send payment, by mail or otherwise, to the Centralized Infractions Bureau, made payable to the ‘clerk of the Superior Court’. Such payment shall be considered a plea of nolo contendere and shall be inadmissible in any proceeding, civil or criminal, to establish the conduct of the person . . . .” (Emphasis added.) Thus, the text of the statute suggests that the payment of the fine is simply a plea, rather than the entry of a final judgment, and the statute is otherwise barren of any insight regarding what would constitute a final judgment in these circumstances. Indeed, such ambiguity begs the question as to whether there was a judgment for the court to open or whether the defendant should have filed a motion to change her plea in an ongoing case that did not yet have a judgment entered. Unfortunately, without an articulation by the court as to its reasoning for denying the defendant’s motion to open, we are left to speculate as to how the court resolved these issues, which we decline to do.

Similarly, the record is unclear as to whether the court made the necessary findings of fact with respect to whether the plea of nolo contendere that was entered by virtue of the defendant’s paying the fine conformed to the relevant statutory requirements. Section 51-164n (f) provides in relevant part: “The provisions of this section shall apply to the alleged commission of an infraction ... by a minor but, in a case involving a minor, a parent or guardian shall sign any plea of nolo contendere or of not guilty on any summons form issued in connection with the matter.” In this case, although it does not appear that either the defendant, who was a minor at the time, or her mother signed the summons form that was issued in this case, it does appear that the defendant’s mother wrote, “If Sarah’s record is noted, Note we completely disagree,” on the summons form. Thus, without a memorandum of decision, we are unable to conclude as a factual matter whether the defendant’s mother wrote the note on the summons form or wrote the check that was used to pay the fine, and we are left to speculate whether the court believed that § 51-164n (f) had any bearing on its decision to deny the defendant’s motion to open the judgment. The defendant failed to file a motion for articulation to clarify these issues and we, therefore, decline to review this claim because the record is not adequate for our review.

Furthermore, we decline to review the issues raised in this case because they were briefed inadequately. As our Supreme Court has often observed, “[w]e are not obligated to consider issues that are not adequately briefed. . . . Whe[n] an issue is merely mentioned, but not briefed beyond a bare assertion of the claim, it is deemed to have been waived. ... In addition, mere conclusory assertions regarding a claim, with no mention of relevant authority and minimal or no citations from the record, will not suffice.” (Citations omitted; internal quotation marks omitted.) Connecticut Coalition Against Millstone v. Connecticut Siting Council, 286 Conn. 57, 87, 942 A.2d 345 (2008).

In this case, the defendant merely asserts that the court should have opened the “judgment” of her infraction for possession of alcohol by a minor because her decision to pay the fine associated with that infraction was induced by fraud, coercion and duress. She does not offer any precedent or analysis to support her arguments and does not offer any analysis as to how the alleged conduct of the police officers in this case affects her rights under the relevant statutory scheme. Although we are sympathetic to the reality that § 51-164n appears to be somewhat nebulous, and may even warrant further judicial interpretation, the record and briefs in this case are inadequate for us to engage in such an endeavor. Indeed, the only meaningful way to resolve the myriad of interrelated issues raised by the defendant’s claim is for us to engage in impermissible fact-finding, reframe the legal questions at issue and attempt to address them without an adequate trial record or the benefit of incisive briefing by the parties. That, we decline to do. See State v. Bruno, 293 Conn. 127, 143 n.13, 975 A.2d 1253 (2009) (“[b]ecause the law on this issue is unsettled, and the defendant’s claim is inadequately briefed, we decline to review it”).

The judgment is affirmed.

In this opinion the other judges concurred.

       Although “it is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party”; Rosato v. Rosato, 53 Conn. App. 387, 390, 731 A.2d 323 (1999); “the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law.” (Internal quotation marks omitted.) Strobel v. Strobel, 64 Conn. App. 614, 618, 781 A.2d 356, cert. denied, 258 Conn. 937, 786 A.2d 426 (2001).

       Although the motion was entitled a “motion to reopen,” we note that because the motion had not been opened previously, “the use of that term is both improper and misleading. . . . The appropriate phrase is ‘motion to open,’ and we reference it in this opinion accordingly.” (Citation omitted.) Rino Gnesi Co. v. Sbriglio, 83 Conn. App. 707, 709 n.2, 850 A.2d 1118 (2004).

       At the time, General Statutes (Rev. to 2007) § 30-89 (b) provided in relevant part: “Any minor who possesses any alcoholic liquor on public or private property shall, for a first offense, have committed an infraction . . . .” Public Acts 2007, No. 07-167, § 49, effective June 25, 2007, amended subsection (b) to read: “Any minor who possesses any alcoholic liquor on (1) any public street or highway, or (2) in any other public or private location, shall, for a first offense, have committed an infraction . . . .”

       The related case of State v. Begley, 122 Conn. App. 546, 2 A.3d 1 (2010), arose out of the same set of facts.

       We note that pursuant to General Statutes § 51-164n (a), which governs the procedure on summons for infractions, “any person who is alleged to have committed an infraction . . . may plead not guilty or pay the established fine and any additional fee or cost for the infraction . . . .” (Emphasis added.) Accordingly, the total fine assessed on the defendant properly included the relevant fees and costs.

       At the time, General Statutes (Rev. to 2007) § 14-llle (a) provided in relevant part: “The Commissioner of Motor Vehicles shall suspend, for a period of one hundred fifty days, the motor vehicle operator’s license . . . of any person under the age of twenty-one who has been convicted of a violation of . . . section 30-89 involving the purchase and possession of alcoholic liquor by a minor.” Section 14-llle was amended by Public Acts 2007, No. 07-167, § 50, in 2007 to reduce the period of suspension for a violation of § 30-89 (b) (1), as that statute was amended by Public Acts 2007, No. 07-167, § 49; see footnote 3 of this opinion; to sixty days and a violation of subsection (b) (2) to thirty days. The amended § 14-llle provides in relevant part that “[t]he commissioner shall conform any suspension for violation of section 30-89 that is in effect on June 25, 2007, to comply with the provisions of this section.”

       The state filed a motion to dismiss the appeal on June 27, 2007, on the ground that the motion to open had been filed improperly by a person who was not an attorney. On September 6, 2007, this court ordered that the motion to dismiss would be granted unless the defendant filed a pro se appearance on or before October 10, 2007, which was ten days after the date on which the defendant became eighteen years of age. The defendant filed a pro se appearance on October 10, 2007.

       The defendant’s license suspension was effective April 25, 2007, but was stayed on May 3, 2007, pending the resolution of this appeal; she had served eight days of the suspension. As a result of the passage of No. 07-167 of the 2007 Public Acts, which applied retroactively to all suspensions in effect on June 25, 2007, the defendant now faces a total suspension of only thirty days, of which she has already served eight days. The defendant, therefore, has only twenty-two days of her suspension left to serve. See footnote 6 of this opinion.

       For the reasons more fully explained below, we use the term “judgment” cautiously in this context. Indeed, General Statutes § 51-164n does not state how or when the payment of a fine for an infraction becomes a final judgment, if at all, and the procedure for entering a plea of nolo contendere under § 51-164n (c) appears at first blush to further obfuscate that analysis. Accordingly, in light of our conclusion not to review that issue, our references to the defendant’s motion to open the judgment should not be construed as our imprimatur that there was a judgment to be opened in this case.

       We also note that the defendant’s mother appears to have paid the defendant’s fine with a personal check, which, it could be argued, fulfills the purpose, if not the text, of § 51-164n (f). It bears emphasis, however, that we make this observation only to highlight the inadequacy of the record; we do not offer any opinion as to whether the defendant’s actions in this case satisfied the requirements of § 51-164n (f).