text:
    UNIFUND CCR PARTNERS v. ELLEN A. SCHAEPPI ET AL.
    (AC 33850)
    Gruendel, Espinosa and Flynn, Js.

      Argued November 13, 2012
    officially released January 22, 2013

      Scott Dellaventura and Jonathan D. Elliot, with whom, on the brief, was Joseph M. Tobin, for the appellant (plaintiff).

      Kirk D. Tavtigian, Jr., for the appellees (named defendant et al.).
   Opinion

GRUENDEL, J.

The plaintiff, Unifund CCR Partners, appeals from the denial by the trial court of its motion to open a judgment rendered in its favor. The plaintiff claims on appeal that the court (1) improperly found that the judgment rendered in its favor was invalidly entered and, therefore, cannot be opened, and (2) erred in finding that an order for installment payments was not a judgment, and, therefore, could not be opened. We affirm the judgment of the trial court.

The following facts and procedural history, as previously set forth by this court, are relevant to the resolution of this claim. “On July 27, 2004, the plaintiff filed a complaint seeking to collect credit card debt allegedly owed by the defendants [Ellen A. Schaeppi and Ernest A. Schaeppi]. A hearing was held on October 31, 2005, before an attorney fact finder. In his January 5, 2006 report, [the fact finder] recommended judgment in favor of the defendants because the plaintiff had failed to establish that the credit card debt had been assigned to the plaintiff. The plaintiff objected to the acceptance of the findings of fact on February 6, 2006. The court, Miller, J., remanded the matter to the attorney fact finder for a rehearing on the issue of whether there had been a valid assignment of the credit card debt. After the hearing on remand was held on March 27, 2006, the attorney fact finder recommended, in a report dated March 30, 2006, that judgment enter in favor of the plaintiff. On June 19,2006, the court rendered judgment in favor of the plaintiff, stating: ‘Judgment shall enter in favor of the plaintiff on the fact finder’s report as revised after remand.’ The plaintiff placed a judgment lien on real property owned by the defendants, which was recorded in the Glastonbury land records on July, 18, 2006. The plaintiff then filed with the court a motion for an order of weekly payments on August 25, 2006, seeking payments of $35 per week. On September 11, 2006, the court, Miller, J., granted the motion and set payments of $25 per week to commence on October 11, 2006.

“By complaint filed on November 13, 2006, the plaintiff then sought foreclosure on the judgment hen. On September 10, 2007, the plaintiff filed a motion for partial summary judgment as to liability. By memorandum of decision filed March 20, 2008, the court, Hon. Robert Satter, judge trial referee, denied the motion [because] the ‘issue of what portion of the defendants’ interest in their property is exempt . . . gives rise to an issue of fact, which . . . precludes the granting of [the] plaintiffs motion for summary judgment.’ . . . The court went on to state that there was another ground on which the plaintiffs motion for summary judgment ‘must be denied . . . .’ The court indicated it had taken judicial notice of and examined the court file of the debt collection action that formed the basis of the foreclosure action. It concluded from that examination that no money judgment had entered in that case because the attorney fact finder had made no finding as to the amount of debt. Moreover, the court continued, Judge Miller had subsequently ordered that judgment enter in favor of the plaintiff on the basis of the attorney fact finder’s report without stating the amount of the judgment. Judge Satter reasoned that, because General Statutes § 52-350f provides in relevant part that a ‘money judgment may be enforced, by execution or by foreclosure of a real property hen, to the amount of the money judgment,’ and General Statutes § 52-380a (a) provides in relevant part that ‘[a] judgment hen, securing the unpaid amount of any money judgment, including interest and costs, may be placed on any real property,’ the judgment hen underlying the foreclosure action was ‘of questionable validity.’ The court, however, acknowledging that the only motion before it was the plaintiffs motion for summary judgment, declared that it was making no such ruling.

“On March 28, 2008, the plaintiff filed a motion with the court, Miller, J., seeking clarification of its June 19, 2006 judgment. The court held a hearing on the matter on May 12, 2008, during which the plaintiff indicated that it was seeking to have the court clarify the dollar amount of the judgment. After hearing from both parties, the court concluded that there never was a finding as to the amount of the debt and that ‘the judgment should not have been allowed to enter without a finite dollar amount.’ As a result, the court further concluded, there never was a money judgment entered in the action, and, therefore, under the unique circumstances of the case, there was no basis for the court to clarify the judgment.

“On July 31, 2008, the defendants filed a motion for summary judgment, attaching Judge Satter’s March 20, 2008 memorandum of decision addressing the plaintiffs motion for partial summary judgment. . . . After a hearing was held on the matter, Judge Satter, by memorandum of decision filed October 15, 2008, granted the motion, concluding that, as a matter of law, a judgment of no amount, underlying a judgment hen in an incorrect amount cannot form the basis of a foreclosure action.” Unifund CCR Partners v. Schaeppi, 126 Conn. App. 370, 372-75, 11 A.3d 723 (2011).

The plaintiff then appealed from the court’s granting of the defendants’ motion for summary judgment, claiming, inter aha, that “the court improperly concluded that the judgment hen that formed the basis of the foreclosure action was invalid as a matter of law because it sought to secure a money judgment of no amount.” Id., 379. The plaintiff advanced two alternate arguments in support of that claim. First, the plaintiff argued that the judgment rendered by Judge Miller on June 19, 2006, “was a full and final judgment as to liability and damages because the amount of the judgment was ascertainable from the record.” Id., 380. The plaintiff argued that, in the alternative, “the order for weekly payments entered by the court on September 11, 2006, was a money judgment” and, could, therefore, serve as the basis for a judgment hen. Id., 382.

This court rejected both of the plaintiffs arguments and affirmed the trial court’s granting of the defendants’ motion for summary judgment. Id., 372. In reaching its decision, this court first determined that the June 19, 2006 judgment was not a “full and final judgment” because it did not “specify with certainty the amount for which it was rendered,” nor was the amount “ascertainable from the record or by mere mathematical computation.” (Internal quotation marks omitted.) Id., 380. Without deciding whether the installment payment order of September 11, 2006, was a money judgment, this court concluded that it was impossible for it to have served as the basis for the judgment lien, as the judgment lien was recorded weeks before the court entered its installment payment order. Id., 382-83.

On June 21, 2011, following this court’s affirmance of the trial court’s granting of the defendants’ motion for summary judgment, the plaintiff filed a motion to open and modify the judgment of June 19, 2006. The court denied that motion and the plaintiffs subsequent motion for reargument and reconsideration filed on August 2, 2011. The plaintiff, on November 7, 2011, filed a motion for articulation, requesting that the court articulate its rationale for denying the plaintiffs motion to open and modify the June 19, 2006 judgment. On December 2, 2011, the court granted the plaintiffs motion for articulation and explained in its articulation that the judgment the plaintiff sought to open, lacking a specific dollar amount, was not a valid judgment. Thus, the court explained, it did not “have the ability to open a judgment that was never really a judgment.” The plaintiff now appeals from the court’s denial of the June 21, 2011 motion to open and modify the judgment rendered on June 19, 2006.

“Our review of a court’s denial of a motion to open . . . is well settled. We do not undertake a plenary review of the merits of a decision of the trial court . . . to deny a motion to open a judgment. ... In an appeal from a denial of a motion to open a judgment, out-review is limited to the issue of whether the trial court has acted unreasonably and in clear abuse of its discretion. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action.” (Internal quotation marks omitted.) Eremita v. Morello, 111 Conn. App. 103, 105-106, 958 A.2d 779 (2008).

The plaintiff argues that the court abused its discretion because it has the authority to open a judgment after the expiration of the four month period prescribed under General Statutes § 52-212a in cases where the judgment was obtained by mutual mistake. Because this argument rests on the faulty premise that there exists a judgment to open, we are unpersuaded.

As this court already has determined that the judgment rendered on Juñe 19, 2006, was not a “full and final judgment”; Unifund CCR Partners v. Schaeppi, supra, 126 Conn. App. 380; we need not engage in that analysis for a second time. Instead, we look only at whether, given that prior determination, the court abused its discretion in denying the plaintiffs motion to open the judgment. Considering that there existed no valid judgment to open in the first instance, we conclude that the court did not abuse its discretion in finding that it could not open that which was never properly entered as a judgment.

The plaintiff next argues, as it did in its first appeal to this court, that even if the June 19, 2006 judgment is invalid, the court’s order of installment payments is a judgment that the court abused its discretion in declining to open. We see no merit in that argument.

General Statutes § 52-350a (9) and (13), which define, respectively, “ [installment payment order” as “the fixing by the court of a sum to be paid periodically by the judgment debtor until satisfaction of a money judgment,” and “[m]oney judgment” as “a judgment, order or decree of the court calling in whole or in part for the payment of a sum of money,” together plainly resolve this question. The statutory language indicates that an installment payment order is an order by the court that may be entered after a money judgment is entered. The statutory language does not indicate that an installment payment order may function as a substitute for a money judgment. See Ballou v. Law Offices Howard Lee Schiff, P.C., 304 Conn. 348, 358, 39 A.3d 1075 (2012) (“[e]ach of these terms [installment payment order and money judgment] has a distinct meaning for purposes of the relevant statutory scheme”).

The plaintiff further contends that when the court entered the installment payment order, this action somehow remedied the defect in the underlying judgment. While the entering of an installment payment order without a basis in a valid judgment may have implications with respect to the validity of the subsequent installment payment order, it does not, conversely, validate an invalid judgment. Not only is this logically untenable, there is no legal authority for the proposition that the entering of an installment payment order corrects an underlying defective judgment. We, therefore, conclude that the court did not abuse its discretion in declining to find that the installment payment order was a judgment it had the authority to open.

Finally, the plaintiff requests that this court invoke its supervisory powers to modify the judgment to include a precise dollar amount or to remand the matter to the fact finder for a determination of the specific amount of debt owed to the plaintiff. As our supervisory powers are reserved for only the most extraordinary of cases, we decline to exercise those powers.

“Appellate courts possess an inherent supervisory authority over the administration of justice. . . . [T]he standards are flexible and are to be determined in the interests of justice. . . . [0]ur supervisory authority [however] is not a form of free-floating justice, untethered to legal principle. . . . [T]he integrity of the judicial system serves as a unifying principle .... [0]ur supervisory powers are invoked only in the rare circumstance where [the] traditional protections are inadequate to ensure the fair and just administration of the courts . . . .” (Internal quotation marks omitted.) State v. Connor, 292 Conn. 483, 518-19 n.23, 973 A.2d 627 (2009). “Supervisory powers are exercised to direct trial courts to adopt judicial procedures that will address matters that are of utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole.” (Internal quotation marks omitted.) State v. Ouellette, 271 Conn. 740, 762 n.28, 859 A.2d 907 (2004).

The present case is not one where the “traditional protections are inadequate to ensure the fair and just administration of the courts . . . .” (Internal quotation marks omitted.) State v. Connor, supra, 292 Conn. 519 n.23. The procedures in place that would have allowed the plaintiff to move for the correction of the fact finder’s failure to state the precise amount of the debt, if the plaintiff had followed them in a timely fashion, are more than adequate to “ensure the fair and just administration of the courts . . . .” (Internal quotation marks omitted.) Id. Moreover, the single anomaly presented by this case does not implicate the fairness of the entire judicial system. Accordingly, we decline to exercise our supervisory powers in this matter.

The judgment is affirmed.

In this opinion the other judges concurred.

       Despite the plaintiffs contention in its reply brief to this court that Ballou v. Law Offices Howard Lee Schiff, P.C., supra, 304 Conn. 348, does not state that an installment payment order is not a money judgment, the Supreme Court’s characterization of these terms as “distinct” in meaning indicates otherwise. Id., 358.


source: Caselaw Access Project

author: ALVORD, J.

license: Public Domain

text:
    SAMNARD ASSOCIATES, LLC v. CITY OF NEW BRITAIN
    (AC 33400)
    Alvord, Espinosa and Bishop, Js.
    Argued November 7, 2012
    officially released January 22, 2013

      Philip C. Pires, with whom were Barbara M. Schel-lenberg and, on the brief, Jonathan S. Bowman, for the appellant (plaintiff).

      Joseph E. Shelly, Jr., assistant corporation counsel, for the appellee (defendant).
   Opinion

ALVORD, J.

In this municipal tax appeal, the plaintiff, Samnard Associates, LLC, challenges the rendering of summary judgment in favor of the defendant, the city of New Britain (city). On appeal, the plaintiff claims that the trial court improperly determined that the plaintiff was precluded from appealing its property assessment for the October 1, 2009 grand list. The court concluded that the plaintiff could not compel an interim revaluation to obtain a further reduction in the assessment it had received for the October 1, 2007 grand list. We affirm the judgment of the trial court, albeit on different grounds.

The following facts and procedural history are relevant to the plaintiffs appeal. On October 1, 2007, the city conducted a revaluation of all real estate in New Britain. The assessor determined that the plaintiffs property, located at 643 Farmington Avenue, had a true and actual value of $11,173,100. In 2008, the plaintiff authorized its tenant, Wal-Mart Real Estate Business Trust (Wal-Mart), to appeal the assessment of the subject property for the October 1, 2007 grand list to the city’s board of assessment appeals (board). As a result of this appeal, the board reduced the assessed value from $11,173,100 to $9,875,700 for the revaluation date. Neither Wal-Mart nor the plaintiff appealed to the Superior Corut from the board’s decision, as authorized by General Statutes § 12-117a.

The plaintiff subsequently challenged the assessment of the same property for the October 1, 2009 grand list by filing an appeal with the board pursuant to General Statutes § 12-111. The board made no change in the valuation. The plaintiff appealed from that decision pursuant to § 12-117a, claiming that its property valuation was grossly excessive, disproportionate and unlawful. The city filed an answer and a special defense, claiming that the plaintiff was barred from bringing the appeal until the next statutorily mandated revaluation scheduled for October 1, 2012. The city then filed a motion for summary judgment on the same ground as was set forth in its special defense. The plaintiff filed a memorandum in opposition to the motion together with an affidavit by one of its officers. The court heard argument and issued its memorandum of decision on April 8, 2011, granting the motion and rendering judgment in favor of the city without costs to either party.

In its memorandum of decision, the court identified three issues: (1) whether a taxpayer, having taken an appeal to the board for the revaluation year, may take a subsequent appeal to the board to challenge the valuation of its property within the same revaluation period; (2) whether the plaintiff is collaterally estopped from bringing the subsequent tax appeal; and (3) whether No. 09-196 of the 2009 Public Acts (P.A. 09-196), which amended § 12-111, had retroactive or prospective effect. The court concluded that the amendment set forth in P.A. 09-196 was a substantive change to the law and could not be applied retroactively so as to preclude the plaintiffs second challenge to the valuation of its property within the revaluation period. It further concluded that the plaintiff was not collaterally estopped by the board’s action on its appeal from the October 1,2007 grand list because no appeal was taken from that action to the Superior Court pursuant to § 12-117a. According to the court, collateral estoppel did not apply because “there was no judicial litigation of the issues involved in this case . . . .” Nevertheless, the court determined that summary judgment was appropriate because “Wal-Mart’s appeal reset the valuation of the subject property as of the revaluation year of October 1, 2007. Once Wal-Mart availed itself of the appellate process, it bound the property owner for each successive tax year until the next citywide revaluation.” The court concluded that “[i]n effect, it would be an interim revaluation, contrary to the will of the legislature, if the plaintiff were to obtain a further reduction in its assessment, as of an interim date such as October 1, 2009.” This appeal followed.

On appeal, the plaintiff claims that the court improperly concluded that it sought an unlawful interim revaluation. The plaintiff argues that the court mischaracterized its appeal. It claims that it was challenging an illegal assessment that occurred between revaluation years and that such a challenge is permissible under our law. The city counters that the court’s rendering of summary judgment was appropriate because § 12-111 (a), as amended, expressly provides that any reduction in the assessment of real property for a particular year fixes that reduced assessment until the next citywide revaluation. The city further argues that the plaintiff was collaterally estopped from bringing the second tax appeal by virtue of the unappealed decision of the board in the first Wal-Mart tax appeal. Because we conclude that § 12-111 (a), as amended by P.A. 09-196, precluded the plaintiffs subsequent tax appeal, we affirm the trial court’s decision on a disposi-tive alternate ground, and it is not necessary to reach the remaining issues raised by the plaintiffs appeal.

We begin with our well settled standard of review for summary judgment. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. ... On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . Our review of the trial court’s decision to grant the defendant’s motion for summary judgment is plenary.” (Internal quotation marks omitted.) Massey v. Branford, 119 Conn. App. 453, 457-58, 988 A.2d 370, cert. denied, 295 Conn. 921, 991 A.2d 565 (2010).

Section 12-111 authorizes a taxpayer to take an appeal to the board of assessment appeals when that taxpayer claims to be aggrieved by the valuation of the taxpayer’s property by the municipality’s assessors. Public Act 09-196 amended subsection (a) of § 12-111 by adding, in relevant part, the following language: “When the board increases or decreases the gross assessment of any taxable real property or interest therein, the amount of such gross assessment shall be fixed until the assessment year in which the municipality next implements a revaluation of all real property pursuant to [General Statutes §] 12-62, unless the assessor increases or decreases the gross assessment of the property to (1) comply with an order of a court of jurisdiction, (2) reflect an addition for new construction, (3) reflect a reduction for damage or demolition, or (4) correct a factual error by issuance of a certificate of correction. . . .” That section of P.A. 09-196 became effective October 1, 2009. The plaintiff does not contest the city’s claim that if this provision of P.A. 09-196 is applied retroactively, the plaintiff would be precluded from seeking a further reduction in the assessed value of its property.

“Whether to apply a statute retroactively or prospectively depends upon the intent of the legislature in enacting the statute. ... In order to determine the legislative intent, we utilize well established rules of statutory construction. Our point of departure is General Statutes § 65-3, which states: No provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have retrospective effect. The obligations referred to in the statute are those of substantive law. . . . Thus, we have uniformly interpreted § 55-3 as a rule of presumed legislative intent that statutes affecting substantive rights shall apply prospectively only. . . . The rule is rooted in the notion that it would be unfair to impose a substantive amendment that changes the grounds upon which an action may be maintained on parties who have already transacted or who are already committed to litigation. ... In civil cases, however, unless considerations of good sense and justice dictate otherwise, it is presumed that procedural statutes will be applied retrospectively. . . . Procedural statutes have been traditionally viewed as affecting remedies, not substantive rights, and therefore leave the preexisting scheme intact. . . . [Although we have presumed that procedural or remedial statutes are intended to apply retroactively absent a clear expression of legislative intent to the contrary ... a statute which, in form, provides but a change in remedy but actually brings about changes in substantive rights is not subject to retroactive application. . . . While there is no precise definition of either [substantive or procedural law], it is generally agreed that a substantive law creates, defines and regulates rights while a procedural law prescribes the methods of enforcing such rights or obtaining redress.” (Citations omitted; internal quotation marks omitted.) D’Eramo v. Smith, 273 Conn. 610, 620-21, 872 A.2d 408 (2005).

“We presume that, in enacting a statute, the legislature intended a change in existing law. . . . This presumption, like any other, may be rebutted by contrary evidence of the legislative intent in the particular case. An amendment which in effect construes and clarifies a prior statute must be accepted as the legislative declaration of the meaning of the original act. . . . Furthermore, an amendment that is intended to clarify the intent of an earlier act necessarily has retroactive effect. . . .

“To determine whether the legislature enacted a statutory amendment with the intent to clarify existing legislation, we look to various factors, including, but not limited to (1) the amendatory language ... (2) the declaration of intent, if any, contained in the public act ... (3) the legislative history . . . and (4) the circumstances surrounding the enactment of the amendment, such as, whether it was enacted in direct response to a judicial decision that the legislature deemed incorrect ... or passed to resolve a controversy engendered by statutory ambiguity .... In the cases wherein this court has held that a statutory amendment had been intended to be clarifying and, therefore, should be applied retroactively, the pertinent legislative history has provided uncontroverted support ... for the conclusion that the legislature considered the amendatory language to be a declaration of the legislature’s original intent rather than a change in the existing statute.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Middlebury v. Dept. of Environmental Protection, 283 Conn. 156, 172-74, 927 A.2d 793 (2007).

We begin by looking to the language of § 1 of P.A. 09-196. Because the language in the amendment is silent with respect to whether it clarifies or changes § 12-111 (a), we look to its legislative history and the circumstances surrounding its enactment to ascertain the intent of the legislature. The language at issue was proposed as an amendment to Substitute House Bill No. 6041 by several sponsors, including Representative J. Brendan Sharkey. Representative Sharkey was asked to summarize the amendment during the session of the House of Representatives held on May 20, 2009. Representative Sharkey’s remarks were as follows: “Mr. Speaker, this amendment simply clarifies what I think is common practice throughout the state, but apparently has not been applied evenly by our assessors.

“It simply says that when someone brings an assessment appeal and wins an adjustment to their assessment by the local assessor, whether it’s through the local board of assessment appeals or through court, that that change in the assessment shall remain in effect until the next revaluation] occurs in that town.

“Apparently there have been a couple of examples of situations where the assessor has granted the adjustment to the taxes in the year that it was claimed on appeal, but then reverted back to the old value in the second year and subsequent years.

“So this is just to clarify that our laws require that the change [in the] assessment stays in effect until the next revaluation], and I urge adoption.” 52 H.R. Proc. 16, Pt., 2009 Sess., p. 5092. The amendment was adopted.

The language in that amendment, which revised § 12-111 (a), was contained in § 1 of Substitute House Bill No. 6041. That portion of the bill became effective October 1, 2009. Sections 2 and 3 of Substitute House Bill No. 6041 specifically provided that the amendatory language in those sections, revising General Statutes §§ 12-63b and 12-63c, respectively, would be “applicable to assessment years commencing on or after October 1, 2009.” The legislature made it clear, by the use of such language, that §§ 2 and 3 of Substitute House Bill No. 6041 would be applied prospectively. Given the remarks of Representative Sharkey and the omission of the prospective application language found in §§ 2 and 3 of Substitute House Bill No. 6041, we conclude that the language at issue in § 1 of that bill was simply a clarification of the original statutory intent of the legislature and was to be applied retroactively. Accordingly, the trial court ultimately reached the correct result in rendering summary judgment in favor of the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 12-111 (a) provides in relevant part: “Any person . . . claiming to be aggrieved by the doings of the assessors of such town may appeal therefrom to the board of assessment appeals. Such appeal shall be filed, in writing, on or before February twentieth. . . . The board shall determine all appeals for which the board conducts an appeal hearing and send written notification of the final determination of such appeals to each such person within one week after such determination has been made. Such written notification shall include information describing the property owner’s right to appeal the determination of such board. . . .”

       Section 1 of P.A. 09-196 amended § 12-111 (a) by adding, inter alia, the following language: “When the board [of assessment appeals] increases or decreases the gross assessment of any taxable real property or interest therein, the amount of such gross assessment shall be fixed until the assessment year in which the municipality next implements a revaluation of all real property pursuant to [General Statutes §] 12-62, unless the assessor increases or decreases the gross assessment of the property to (1) comply with an order of a court of jurisdiction, (2) reflect an addition for new construction, (3) reflect a reduction for damage or demolition, or (4) correct a factual error by issuance of a certificate of correction. ...” This section of P.A. 09-196 became effective October 1, 2009.

       “Our Supreme Court has consistently defined an interim revaluation in relation to the legislatively mandated, periodic revaluation requirement of [General Statutes] § 12-62 as a revaluation conducted in the years between statutorilyprescribedrevaluations.” (Emphasis in original.) Waterbury Hotel Equity, LLC v. Waterbury, 86 Conn. App. 480, 497, 858 A.2d 259, cert. denied, 272 Conn. 901, 863 A.2d 696 (2004).

       “[I]t is true that § 12-117a prohibits a taxpayer from demanding that the assessor conduct an interim revaluation . . . but allows a taxpayer to challenge an illegal assessment within a statutorily mandated revaluation period . . . .” (Citation omitted; emphasis in original.) Waterbury Hotel Equity, LLC v. Waterbury, 85 Conn. App. 480, 498, 858 A.2d 259, cert. denied, 272 Conn. 901, 863 A.2d 696 (2004).

       In the plaintiffs reply brief, it states that the city’s arguments are not renewable by this court because the city failed to announce its intention to raise the alternate grounds for affirmance by filing a preliminary statement of issues pursuant to Practice Book § 63-4 (a) (1) (A). The plaintiffs argument is not persuasive. Absent exceptional grounds, an appellate court should not review an alternate ground for affirmance that was not raised before, and decided by, the trial court. Perez-Dickson v. Bridgeport, 304 Conn. 483, 498-500, 43 A.3d 69 (2012). In the present case, the city’s claims were raised before and decided by the trial court. Further, an appellate court “generally has reviewed alternate grounds for affirmance even though the appellee has not complied with the requirement to identify such claims in a preliminary statement, when doing so would not prejudice the appellant.” Id., 499 n.22. The plaintiff has not claimed any prejudice that resulted from the city’s failure to file a preliminary statement of issues pursuant to Practice Book § 63-4 (a) (1) (A).

       We note, however, that the doctrine of collateral estoppel also may apply to determinations of administrative agencies under certain circumstances. Tevolini v. Tevolini, 66 Conn. App. 16, 22 n.6, 783 A.2d 1157 (2001).

       In the absence of anything in the legislative history to contradict a sponsor’s direct and unequivocal statement regarding an amendment’s clari-iying purpose, a reviewing court affords substantial weight to the characterization of its objective and effect See Middlebury v. Dept. of Environmental Protection, supra, 283 Conn. 177.


author: BORDEN, J.

text:
    STATE OF CONNECTICUT v. ROBERT MULLIEN III
    (AC 33490)
    Beach, Sheldon and Borden, Js.

      Argued October 16, 2012
    officially released January 22, 2013

      Kevin C. Connors, with whom, on the brief, was Mark C. Hauslaib, for the appellant (defendant).

      Bruce R. Lockwood, senior assistant state’s attorney, with whom, on the brief, were Patricia M. Froehlich, state’s attorney, and Edward R. Azzaro and Jennifer M. Barry, assistant state’s attorneys, for the appellee (state).
   Opinion

BORDEN, J.

The defendant, Robert Mullien III, appeals from the judgment of conviction, rendered after a jury trial, of risk of injury to a child in violation of General Statutes § 53-21 (a) (1) and assault in the second degree in violation of General Statutes § 53a-60 (a) (2). On appeal, the defendant claims that the trial court improperly: (1) denied his motion to suppress evidence and a confession obtained during a search of his home; and (2) granted the state’s motion to amend the information after the trial had commenced. We affirm the judgment of the trial court.

The state charged the defendant by way of an amended information with one count of risk of injury to a child in violation of § 53-21 (a) (1) and one count of assault in the second degree in violation of § 53a-60 (a) (2). Prior to trial, the defendant filed a motion to suppress certain oral and written statements he had made to detectives as well as the physical evidence seized and obtained after the detectives entered his home. After an evidentiary hearing, the trial court denied the defendant’s motion. The jury found the defendant guilty on both counts. The court, after accepting the jury’s verdict, sentenced the defendant to a total effective term of ten years of incarceration, execution suspended after five years, followed by five years of probation. This appeal followed.

The jury reasonably could have found the following facts. In August, 2007, Minnesota child protection authorities contacted the defendant, requesting that he take guardianship of his nephew, P, and two nieces, H and A, because the children could no longer live with their mother, the defendant’s sister. On the morning of May 12, 2008, H arrived at her elementary school and approached her teacher to hand in homework. H’s teacher saw bruising on her face and, after asking H what happened, H explained that the bruising was caused either when she was hit with a basketball or ran into a basketball pole. After the school nurse examined H, the nurse called the department of children and families’ hotline. A department of children and families investigator met with the nurse and H, and determined that the bruises on H did not appear to be accidental and contacted the state police.

When state Trooper Roberto Morales arrived at the school, he interviewed H and her siblings, and took photographs of H and her injuries. After he left the school, Morales went to the defendant’s home to interview him and his wife. The defendant agreed to give a written statement in which he claimed that H had struck her face against a basketball pole. The next day, May 13,2008, Detective Keith Hoyt conducted forensic interviews of H and P at the children’s advocacy center in Danielson. On the basis of those interviews, Hoyt proceeded to the defendant’s home where he met Detective Erik Costa. The detectives sought to obtain consent to search the defendant’s home for evidence relating to the physical assault of H.

The defendant and his wife let the detectives into the home and ultimately gave the detectives written consent to search the house. Additionally, after signing a waiver of his Miranda rights, the defendant confessed that on several occasions he had struck H with his hand, a belt and a length of rope. The defendant also pointed out a length of rope and a belt on the top of a hutch in the dining room.

At trial, H testified that the defendant caused the bruises on her face when he slapped and punched her, and inflicted bruising to her buttocks and her legs when he struck her with his belt. Additionally, the defendant hit her on the back of the leg with a “whipper,” namely, a deer whistle with a chain. The defendant also made H stand in the comer of a room while holding her hands in the air for long periods of time, made her stand outside at night in a wooded area for several hours and made H wear a sign on her back that said, “I’m retarded.” H’s brother, P, testified that he saw the defendant hit H on her buttocks with his belt while holding her down on the kitchen table and that, to P, it seemed as if the defendant hit H almost every day. Additional facts and procedural history will be set forth as necessary.

I

The defendant first claims that the court improperly denied his motion to suppress evidence obtained during a police search of his home. Specifically, the defendant contends that the court improperly found that he freely and voluntarily consented to the search and that, therefore, the warrantless search of the defendant’s home violated his constitutional rights. The defendant further claims that the written and oral statements he gave the police were derivative of this unlawful police conduct. We disagree.

The following additional facts, which were adduced at the suppression hearing, are necessary to our resolution of this claim. After Hoyt had been assigned the investigation, he spoke with Morales, the trooper who had obtained a preliminary statement from the defendant. Hoyt then interviewed both H and P, and concluded that H had been physically abused.

At 4:30 p.m., on May 13, 2008, Hoyt and Costa went to the defendant’s home in Canterbury to interview the defendant and to obtain consent to search the premises. Upon arriving, Hoyt and Costa were greeted by the defendant and his wife at the door. Although the detectives were not in uniform, they displayed badges and identified themselves as state police officers. The defendant and his wife invited the detectives into the home. Once inside, and seated at the dining room table, Hoyt asked the defendant for consent to search the premises. The defendant initially agreed to consent to the search and “then made reference to possibly calling an attorney and not granting consent to search his premises.” The detectives informed the defendant that “in that situation, the state police might seek a search warrant, at which time Detective Hoyt and possibly others would remain on the premises to secure the premises while detectives or other law enforcement officers obtained a warrant.” After approximately five to ten minutes, the defendant consented to a search of his home, and Hoyt went through the consent form line by line with the defendant, who signed the form. While waiting for the arrival of additional officers to conduct the search, Hoyt informed the defendant that if he wanted to discuss the allegations, Hoyt would need to give him his Miranda rights. The defendant signed a notice and waiver of rights form that Hoyt read line by line.

Subsequent to the defendant’s signing the waiver of rights form, Hoyt began asking questions regarding the defendant’s statement to Morales, and the defendant again denied ever striking H. Hoyt then produced photographs of H’s bruises, and the defendant admitted that he had struck H. The defendant himself pointed out certain objects in his home, including a belt and a rope. After speaking with the defendant for approximately two hours, the defendant agreed to sign a written statement. Hoyt wrote the statement out, and the defendant read through it, pointing out corrections to be made to the statement. Hoyt made the corrections, and the defendant initialed the edits and signed the full statement. Throughout the entire time period that the detectives were inside the defendant’s home, the defendant and his wife were able to move around freely within the home. The defendant used the bathroom on a couple of occasions, and his wife went outside at some point to either walk the dog or smoke a cigarette, after which Costa joined her outside.

“It is axiomatic that searches and seizures inside a home without a warrant are presumptively unreasonable. ... A warrantless search or entry into a house is not unreasonable, however, under the fourth amendment to the United States constitution or article first, § 7, of the Connecticut constitution when a person with authority to do so has freely consented. . . . The question of whether a defendant has given voluntary consent to enter or search his or her premises is a question of fact to be determined by the trial court by considering the totality of the circumstances surrounding the entry or search. . . .

“The voluntariness of the consent is normally decided by the trial court based on the evidence it deems credible along with reasonable inferences that can be drawn therefrom. . . . Whether there was a valid consent to search is a factual question that will not be lightly overturned on appeal. . . . The ultimate question is whether the will of the consenting individual was overborne, or whether the consent was his unconstrained choice.” (Citations omitted; internal quotation marks omitted.) State v. Martinez, 49 Conn. App. 738, 742-43, 718 A.2d 22, cert. denied, 247 Conn. 934, 719 A.2d 1175 (1998).

“On appeal, we apply a familiar standard of review to a trial court’s findings and conclusions in connection with a motion to suppress. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... The conclusions drawn by the trial court will be upheld unless they are legally and logically inconsistent with the evidence.” (Internal quotation marks omitted.) State v. Janulawicz, 95 Conn. App. 569, 574, 897 A.2d 689 (2006).

Application of these principles to the facts of this case leads us to conclude that the defendant voluntarily consented to the search of his home. We reach this conclusion by examining the totality of the circumstances. State v. Martinez, supra, 49 Conn. App. 743. In this case, there was ample evidence from which the court could conclude that the defendant consented freely and voluntarily. Testimony was adduced at the suppression hearing that the defendant and his wife invited the detectives into their home. The detectives informed the defendant of his right to refuse consent and explained the written consent form line by line. At no time did the defendant or his wife ask Hoyt or any other detective to leave the residence, even though Hoyt explained to the defendant that he had the right not to allow the police to search his home. Although the defendant argues that his account of the police entry into the home significantly differed from the detectives’ testimony, “we are mindful, as we must be, that where there is conflicting testimony, it is uniquely the function of the trier of facts to weigh the evidence and assess the credibility of witnesses.” State v. MacNeil, 28 Conn. App. 508, 514, 613 A.2d 296, cert. denied, 224 Conn. 901, 615 A.2d 1044 (1992). On the basis of our review of the record, we conclude that the court’s findings were not clearly erroneous, and that its denial of the defendant’s motion to suppress was supported by the facts.

The defendant argues nevertheless that Hoyt’s statement that they would “apply for a search warrant,” coupled with Hoyt’s indicating that “he would remain at the table, sitting down at the kitchen table, awaiting a search warrant,” was coercive because it made the defendant fear that unless he consented to the search, the detectives would remain indefinitely at his home. The state argues that the court correctly found that “the state trooper detective had, indeed, a right to remain present within the residence once having been invited inside by [the defendant], notwithstanding the possible invocation of a desire by [the defendant] to contact his attorney . . . .” We agree with the state.

While a threat to take an improper action may vitiate voluntariness; Dotson v. Warden, 175 Conn. 614, 621, 402 A.2d 790 (1978); here, no improper threat was made. If the detectives had informed the defendant that a search warrant would be issued if he had refused to give consent, then such consent would have been involuntary because “the intimation that a warrant will automatically issue is as inherently coercive as the announcement of an invalid warrant.” Id. In Dotson, the court was concerned with the inherent coerciveness of “the intimation that a warrant will automatically issue”; (emphasis added) id.; as opposed to the situation here, where Hoyt informed the defendant that the police “would apply for a search warrant.” (Emphasis added.) Further, if the defendant refused to allow the search, it would have been proper for the police to secure the premises while awaiting a search warrant. In State v. Brunetti, 279 Conn. 39, 70-71, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S. Ct. 1328, 167 L. Ed. 2d 85 (2007), our Supreme Court held that the defendant’s father voluntarily consented to a search of his home where the defendant was living, despite a detective’s statement that the police “could obtain a search warrant and possibly keep [him] from going back into [his] home until the search warrant . . . [was] obtained.” (Internal quotation marks omitted.) Id., 70. The court in Bru-netti described the detective’s statement as an accurate statement of standard police practice and held that it was neither misleading nor inherently coercive. Id., 71 n.41. In the present case, Hoyt explained to the defendant that Hoyt “needed to stay and make sure nothing was destroyed.” Hoyt’s statement was not misleading or coercive because the detectives were entitled to apply for a search warrant and lawfully remain on the premises for the purpose of preventing destruction of the evidence while they obtained a search warrant. See Segura v. United States, 468 U.S. 796, 810, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984) (“securing a dwelling, on the basis of probable cause, to prevent the destruction or removal of evidence while a search warrant is being sought is not itself an unreasonable seizure of either the dwelling or its contents”); see also Illinois v. McArthur, 531 U.S. 326, 331-36, 121 S. Ct. 946, 148 L. Ed. 2d 838 (2001) (permitting impoundment of person’s home for reasonable periods of time while police obtain search warrant).

To support his argument, the defendant relies on State v. Rushton, 264 Mont. 248, 269, 870 P.2d 1355 (1994), in which the Montana Supreme Court reversed the district court’s denial of the defendant homeowner’s motion to suppress evidence of a marijuana growing operation that the police seized during a warrantless search of the defendant’s home. In Rushton, the court found that the defendant’s consent was not voluntary because the defendant already had admitted to the presence of contraband on the premises in response to unlawful questioning, the police implied that if the defendant did not cooperate he would be arrested and the police further misrepresented that they could sit in the defendant’s home for a number of hours while a warrant was obtained. Id., 258-59. The defendant in this case argues that his consent, like that of the homeowner in Rushton, was not voluntary in light of Hoyt’s statement that if he did not give consent, a search warrant would be applied for and that the detectives would likely remain on the premises until the search warrant issue was resolved. The defendant’s reliance in Rushton is misplaced.

The facts in Rushton are readily distinguishable from those in the present case. In Rushton, the court was concerned with the inherent coerciveness of several instances of unlawful conduct or misrepresentations on the part of the police; id., 258; whereas here, the only allegedly coercive statement by the detectives was that they would secure the premises if they needed to obtain a search warrant. The court in Rushton found especially troubling that “the implication existed that if [the] defendant did not cooperate, incarceration would result . . . .’’Id., 259. In the present case, at no time did the detectives make any reference to the defendant being arrested as a result of his failure to consent to the search. Further, the court in Rushton also concluded: “While the officers may have been able to remain on [the] defendant’s property during the time it took to obtain a warrant, it was a misrepresentation to imply that they could remain in [the] defendant’s home, keeping him and his wife in custody, while a warrant was obtained.” Id. Here, the court expressly found that neither the defendant nor his wife “were in custody. They were free to leave. Neither was restricted in any manner with respect to their liberty. No one was detained, no one was handcuffed . . . .” Thus, in light of the facts that the detectives could have remained on the premises for the purpose of securing the scene, and that they informed the defendant of his right to refuse consent and that he was free to leave, it is reasonable to conclude that the defendant’s consent was the product of “his unconstrained choice.” (Internal quotation marks omitted.) State v. Martinez, supra, 49 Conn. App. 743.

II

We next address the defendant’s claim that the court improperly allowed the state to amend the information, after the trial had commenced, in violation of Practice Book § 36-18, to expand the time frame of the charged assault and risk of injury to a child. The defendant argues that the state failed to comply with Practice Book § 36-18, which permitted it to amend the information after the trial had begun. We disagree.

The following additional facts are relevant. When jury selection began on December 8, 2010, the operative information charged the defendant with risk of injury to a child and assault in the second degree with the time period for the offenses being “on or about May 7, through May 10, 2008 . . . .” Prior to the start of evidence, on January 28, 2011, the state filed a motion to amend the information regarding the date of the offenses to “on or about March, 2008, through May 11, 2008 . . . .” The stated reason for the amendment was the information obtained by the prosecutor, who had traveled to Minnesota to interview the witnesses in preparation for trial. The court granted the state’s motion to amend and found that “the amendment, as described, does not in any way prejudice or substantially prejudice the defendant’s preparation of [his] defense.” Additionally, the court found that “the state’s explanation for the amendment at the time it proposed to file [it] is understandable in light of the ongoing investigation, which may have involved an out-of-state trip to Minnesota to interview a complaining witness or witness in this case.” The court determined that “the state’s reasoning is logical and in light of further trial preparation.”

“On appeal, our [standard of review] of the court’s decision to permit an amendment to the information is one of abuse of discretion.” State v. Caracoglia, 78 Conn. App. 98, 101, 826 A.2d 192, cert. denied, 266 Conn. 903, 832 A.2d 65 (2003). “Before a trial begins, the state has broad authority to amend an information pursuant to Practice Book § 36-17. Once the trial has started, however, the prosecutor is constrained by the provisions of Practice Book § 36-18.” State v. Wilson F., 77 Conn. App. 405, 411, 823 A.2d 406, cert. denied, 265 Conn. 905, 831 A.2d 254 (2003). “If the state seeks to amend charges after the commencement of trial, it shoulders the burden of establishing that no substantive rights of the defendant would be prejudiced. . . . Like any other party petitioning the court, the state must demonstrate the basis for its request. Under [Practice Book § 36-18], the state must show: (1) good cause for the amendment; (2) that no additional or different offense is charged; and (3) that no substantive right of the defendant will be prejudiced. This allocation of burden encourages the state to prepare its case carefully because it bears the burden of justifying subsequent adjustments.” (Internal quotation marks omitted.) State v. Tanzella, 226 Conn. 601, 614-15, 628 A.2d 973 (1993). We address in turn each prong of the test in Tanzella.

A

We first examine whether the state satisfied the good cause prong of Practice Book § 36-18. The prosecutor had traveled out of state to interview the victim and other witnesses in preparation for trial. He obtained additional information regarding the frequency of the defendant’s abuse. The state amended the information on the basis of the newly discovered time frame. We previously have upheld amendments that expand the time frame of a charged crime in order to conform to a victim’s changed testimony. See State v. Grant, 83 Conn. App. 90, 98, 848 A.2d 549 (“[w]e conclude that by virtue of the change from the anticipated testimony of the victim, which occurred at trial, the state showed good cause sufficient to meet the first prong of Practice Book § 36-18”), cert. denied, 270 Conn. 913, 853 A.2d 529 (2004).

The defendant argues that the state did not have good cause for the amendment of the information because the state had control over when the witnesses would be interviewed and, therefore, the state could have anticipated or made allowance for the interviews to be conducted prior to the start of the trial. Important to our consideration of whether the state had good cause are our prior decisions in which we have recognized the special difficulty involved with the testimony of minor victims. “Under the circumstances of this case, the state had good cause to amend the information when such factors as the age of the [victim] at the time of the incidents, his age at the time of trial and his testimony concerning dates at trial are taken into consideration. There is no reason to believe that a more accurate date could have been solicited in earlier interviews.” State v. Wilson F., supra, 77 Conn. App. 413; see also State v. Grant, supra, 83 Conn. App. 100-101 (same). These same factors apply in the case here and warrant our conclusion that the state had good cause to amend the information.

B

The second prong of Tanzella requires that no additional or different offense be charged in the amended information. This prong is easily established because no new charges were included in the amended information. Nevertheless, the defendant argues that by expanding the dates of the offenses, he essentially was charged with additional offenses. We are unpersuaded. The amended information charged the exact same two offenses as the original information: risk of injury to a child and assault in the second degree. See State v. Morris, 49 Conn. App. 409, 415, 716 A.2d 897 (proper for court to permit amendment to amplify or correct time of commission of offense when it is not material element of crime charged), cert. denied, 247 Conn. 904, 720 A.2d 516 (1998).

C

Third, the defendant claims that the amendment substantially prejudiced his rights, including his right to be notified of the crimes of which he stood charged and his right to prepare his defense adequately. As noted in part II B of this opinion, there were no new charges in the amendment and, therefore, the defendant stood in the same position prior to the amendment as being notified of the crimes of which he stood charged.

“For purposes of [Practice Book § 36-18], the decisive question is whether the defendant was informed of the charges with sufficient precision to be able to prepare an adequate defense.” State v. Tanzella, supra, 226 Conn. 608. The defendant’s defense was to deny all of the charges, and he testified that he had never struck H, which conformed to this defense. It is unclear how additional time would have helped the defendant to prepare a more thorough defense. “A bare assertion of prejudice is not sufficient to support a claim of prejudice. . . . The defendant must provide a specific showing of prejudice in order to establish that he was denied the right of due process of law .... Such a showing amounting to a deprivation of his constitutional right to adequate notice of the charges against him is not made, however, merely by establishing that the presentation of his . . . defense may be more burdensome and difficult.” (Citation omitted; internal quotation marks omitted.) State v. Carneiro, 76 Conn. App. 425, 439-40, 820 A.2d 1053, cert. denied, 264 Conn. 909, 826 A.2d 180, cert. denied, 540 U.S. 915, 124 S. Ct. 304, 157 L. Ed. 2d 208 (2003); see also State v. Tanzella, supra, 616 (“[T]he effect of the amendments was logically distinct from the defense asserted .... Moreover, nothing in the record suggests that the defendant would have presented a different defense if the amended offenses had been alleged at the outset, or that the defendant suffered any unfair surprise that deprived him of substantive rights.”). Additionally, although the trial court initially denied the defendant’s request for a two day continuance to prepare his defense in light of the amended information, due to inclement weather there was a two day delay in the proceedings and the court effectively reversed its denial of the request for a continuance. Under these circumstances, the defendant had fair notice and was not deprived of time to prepare his defense adequately.

The defendant also asserts that the amended information created a heightened risk that the jury relied on different acts in order to find him guilty. Although the time frame in the amended information was enlarged to include additional incidents occurring between March and May, 2008, the state presented its case on the basis of specific acts that caused the injuries evidenced in the photographs taken of H on May 12, 2008. For example, the state presented the photographic evidence of the bruises on H’s face, as well as the testimonial evidence of H’s injuries as observed on May 12, 2008, by school, and department of children and families and police personnel. Additionally, during closing arguments, the state argued that the defendant’s belt was a dangerous instrument within the meaning of the assault statute; General Statutes § 53a-60 (a) (2); and asked the jurors to compare the belt to the bruises on H as reflected in the photographs. The court also gave a unanimity instruction to the jury on both charges. “The jury is presumed, in the absence of a fair indication to the contrary, to have followed the court’s instructions as to the law.” (Internal quotation marks omitted.) State v. Jennings, 216 Conn. 647, 664, 583 A.2d 915 (1990). Thus, the amendment to the information amplifying the time in which the two offenses occurred did not prejudice the defendant’s substantive rights. We conclude, therefore, that the court did not abuse its discretion in allowing the state to amend the information.

The judgment is affirmed.

In this opinion the other judges concurred.

       In accordance with our policy of protecting the privacy interests of the victims of the crime of risk of ipjury to a child, we decline to identify the victims or others through whom the victims’ identities may be ascertained. See General Statutes § 54-86e.

         Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, L. Ed. 2d 694 (1966).

       The defendant testified at the suppression hearing that the police officers had identified themselves as being from the “state’s attorney’s office,” but the court concluded that the defendant had been mistaken.

       Although the defendant’s wife was present at the time of the search, the voluntariness of only the defendant’s consent is in issue in this appeal.

       The court instructed the jurors: “In order for you to find the defendant guilty of assault, you must all agree on the act that is the basis for the assault.” Similarly, for the risk of injury charge, the court instructed: “With respect to the count of risk of injury, similarly, you must all agree on the act that is the basis for the offense of risk of injury. You must agree unanimously on the act as the basis for a conviction of risk of injury to a minor.”


text:
    ORVILLE COLEY, ADMINISTRATOR (ESTATE OF LORNA COLEY) v. CITY OF HARTFORD
    (AC 33904)
    Alvord, Sheldon and West, Js.

      Argued September 20, 2012
    officially released January 22, 2013

      Hugh D. Hughes, with whom, on the brief, was William F. Gallagher, for the appellant (plaintiff).

      Jonathan H. Beamon, senior assistant corporation counsel, for the appellee (defendant).
   Opinion

ALVORD, J.

The plaintiff, Orville Coley, administrator of the estate of Loma Coley, appeals from the summary judgment rendered by the trial court in favor of the defendant, the city of Hartford (city). He claims that the court improperly concluded that there was no genuine issue of material fact as to whether certain police officers’ response to a report of family violence constituted a discretionary, as opposed to a ministerial, act. We affirm the judgment of the trial court.

The following facts, viewed in the light most favorable to the plaintiff, are relevant to our disposition of the plaintiffs appeal. On November 5, 2007, at approximately 8:39 p.m., Hartford police officers G. Fancher and Z. Freeto were dispatched to respond to a complaint of domestic violence at 47 Bolton Street. The complaint had been made by Jahmesha Williams, one of the residents of 47 Bolton Street, who had called the police because the father of her child, Gerard Chapdelaine, had come to her house and attempted to gain entry and, having failed, brandished a revolver and threatened her life.

Williams lived at 47 Bolton Street with her son, a friend and Williams’ mother, Coley. On the evening in question, Coley had arrived at the house in her car and observed Chapdelaine threatening Williams’ life and brandishing a firearm in the front yard. Coley told Chap-delaine that she would call the police if he did not leave. He responded, “call the cops,” and she drove away. By the time she returned, officers Fancher and Freeto had arrived at 47 Bolton Street in response to Williams’ call, but Chapdelaine was no longer present. The officers spoke with neighbors and went to Chapdelaine’s residence at 51 Bolton Street, but they were unable to find him. Williams informed the officers that Chapdelaine’s car was illegally parked at 55 Bolton Street, and officers ticketed the vehicle and had it towed. The officers also learned that Williams had a protective order against Chapdelaine prohibiting him from threatening or harassing her, entering her dwelling or having any other contact with her. Hartford police were aware of the protective order and previously had responded to incidents of domestic violence between Chapdelaine and Williams at 47 Bolton Street.

Unable to locate Chapdelaine, and aware that he had allegedly committed a family violence crime by violating a protective order, Fancher and Freeto left Bolton Street to prepare an arrest warrant. Approximately three hours later, at about 12:05 a.m., officers were again dispatched to 47 Bolton Street, this time in response to a report that a male was attempting to force entry into the residence. The police determined that the two reported incidents at 47 Bolton Street were related, and, upon arrival at the scene, heard screams coming from the second floor. After setting up a perimeter and entering the residence, police discovered that Coley had been shot and killed.

On July 9, 2008, the plaintiff was appointed as the administrator of the estate of his sister, Coley, and he continues to act in that capacity. On November 17, 2009, the plaintiff filed a lawsuit against the city, in his capacity as administrator, alleging that the city’s police officers were negligent in their failure to (1) arrest Chap-delaine in violation of General Statutes § 46b-38b (a); (2) remain at the scene for a reasonable amount of time to ensure the likelihood of further imminent violence had been eliminated in violation of § 46b-38b (d); and (3) follow the Hartford police department’s internal police response procedures for responding to cases of family violence (police response procedures). The plaintiff contends that, pursuant to General Statutes § 52-557n (a) (1) (A), the city is liable for the damages suffered by Coley due to the negligent acts of Fancher and Freeto. The city raised two special defenses in its answer: (1) the city is entitled to governmental immunity under § 52-557n (a) (2) (B), and (2) any injuries claimed by Coley were the result of her own negligence. The city then filed a motion for summary judgment on the basis of the governmental immunity provided under § 52-557n (a) (2) (B). The court rendered summary judgment in favor of the city, finding that the acts undertaken by the police were discretionary, not ministerial, and that the exception to municipal immunity for discretionary acts when an identifiable person is in imminent harm was not applicable in this case. This appeal followed.

On appeal, the plaintiffs sole claim is that there is a genuine issue of material fact as to whether Fancher and Freeto had a ministerial or a discretionary duty to remain at 47 Bolton Street. The plaintiff argues that § 46b-38b (d) and the city’s police response procedures imposed a ministerial duty upon the officers to stay at the scene for “a reasonable time until, in the reasonable judgment of the officer, the likelihood of further imminent violence has been eliminated.” General Statutes § 46b-38b (d); Hartford Police Department policy and procedure, police response to cases of family violence, No. 7-40, effective October 1, 1986. The city contends that the trial court correctly determined that the discretionary act immunity codified in § 52-557n shields the city from liability. We agree with the city.

“We begin by setting forth the appropriate standard of review. Because the present case was disposed of by way of summary judgment, we first address the appropriate framework for appellate review of a summary judgment determination. Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Sokaitis v. Bakaysa, 293 Conn. 17, 21-22, 975 A.2d 51 (2009). “In reviewing a trial court’s ruling on a motion for summary judgment when the material facts are undisputed, we must decide whether the trial court erred in concluding that the moving party was entitled to judgment as a matter of law.” (Internal quotation marks omitted.) McAuley v. Southington Savings Bank, 69 Conn. App. 813, 818, 796 A.2d 1250, cert. denied, 261 Conn. 903, 802 A.2d 853 (2002). “Our review of the trial court’s decision to grant the defendant’s motion for summary judgment is plenary.” (Internal quotation marks omitted.) Sokaitis v. Bakaysa, supra, 22.

“Negligence is a breach of duty. ... It is important to distinguish between the existence of a duty and the violation of that duty. ... To sustain a cause of action, the court must determine whether the defendant owed a duty to the plaintiffs decedent .... The existence of a duty is a question of law. . . . Only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand.” (Citations omitted; internal quotation marks omitted.) Shore v. Stonington, 187 Conn. 147, 151-52, 444 A.2d 1379 (1982). “The issue of governmental immunity is simply a question of the existence of a duty of care, and this court has approved the practice of deciding the issue of governmental immunity as a matter of law. . . .

“General Statutes § 52-557n abandons the common-law principle of municipal sovereign immunity and establishes the circumstances in which a municipality may be hable for damages.” Doe v. Petersen, 279 Conn. 607, 614, 903 A.2d 191 (2006). The first part of the statute provides for the possibility that a municipality may be liable for negligently performed ministerial acts by stating that “a political subdivision of the state shall be hable for damages to person or property caused by . . . (A) [t]he negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties . . . .” (Emphasis added.) General Statutes § 52-557n (a) (1). The second part of the statute then distinguishes discretionary acts from those that are ministerial by stating that “a political subdivision of the state shall not be liable for damages to person or property caused by . . . (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.” (Emphasis added.) General Statutes § 52-557n (a) (2). “Generally, liability may attach for a negligently performed ministerial act, but not for a negligently performed governmental or discretionary act.” Kolaniak v. Board of Education, 28 Conn. App. 277, 281, 610 A.2d 193 (1992).

“A municipality is immune from liability for the performance of . . . acts [that] are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature. ... On the other hand, ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action.” (Internal quotation marks omitted.) Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 167-68, 544 A.2d 1185 (1988). “The hallmark of a discretionary act is that it requires the exercise of judgment. ... In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.” (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). In order to create a ministerial duty, there must be a “city charter provision, ordinance, regulation, rule, policy, or any other directive [compelling a municipal employee] to [act] in any prescribed manner.” Id., 323.

While the threshold inquiry in determining whether a duty is ministerial or discretionary is whether there exists a directive compelling a municipality or its agent to act in a prescribed manner, the existence of such a directive alone is not necessarily sufficient to create a duty. For example, a directive can only create a duty to an individual if the individual is a member of the class of people the directive sought to protect. See Ward v. Greene, 267 Conn. 539, 548, 839 A.2d 1259 (2004) (“in determining whether a duty of care is owed to a specific individual under a statute, the threshold inquiry . . . is whether the individual is in the class of persons protected by the statute”). “In an action for neglect of duty it is not enough for the plaintiff to show that the defendant neglected a duty imposed by statute, and that he would not have been injured if the duty had been performed, but to entitle him to recover, he must further show that such duty was imposed for his benefit, or was one which the defendant owed to him for his protection and security, from the particular loss or injury of which he complains.” (Internal quotation marks omitted.) Id., 550-51.

“[T]he great weight of authority [states] that the operation of a police department is a discretionary governmental function.” Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 179. The plaintiff in this case attempts to circumvent that authority by relying on specific directives rather than general operating principles to form an argument that the city breached a duty to Coley. The plaintiff first relies on § 46b-38b (d), which commences by setting forth four measures that officers must take to assist the victim when responding to an incident of family violence. The plaintiff does not allege that the officers failed to comply with any of those directives. Instead, the plaintiff directs our attention to the provision stating that “[i]n cases where the officer has determined, that no cause exists for an arrest, assistance shall include . . . (B) remaining at the scene for a reasonable time until, in the reasonable judgment of the officer, the likelihood of further imminent violence has been eliminated.” (Emphasis added.) General Statutes § 46b-38b (d). The plaintiff argues that this part of the statute imposed a duty upon the officers to remain at the scene. We disagree. The condition precedent, that the officer determine there is no cause for arrest, did not occur in this case. In fact, it is undisputed that Fancher and Freeto determined that, due to a violation of a protective order, Chapdelaine should be arrested. They attempted to locate him, and when they could not find him at the scene, his residence or his vehicle, the officers left Bolton Street with the intention of obtaining an arrest warrant. Because the condition precedent did not occur, this subsection of the statute is wholly inapplicable, and therefore can not create either a ministerial or a discretionary duty.

The plaintiff next argues that a directive within the city’s police response procedures created a ministerial duty owed to Coley. Specifically, the plaintiff relies on part III, § 4, entitled “Victim Safety,” which states in its entirety: “In the event that an arrest is not made, [Public Acts 1986, No. 86-337 (P.A. 86-337)] requires that officers shall remain at the scene for a reasonable time until, in the reasonable judgment of the officer, the likelihood of further imminent violence has been eliminated.” The plaintiff contends that this directive creates a ministerial duty for the officer to remain at the scene for a reasonable time. Furthermore, the plaintiff argues that the determination of whether the officer remained for a reasonable time is based on an objective standard and requires a factual determination by a jury. The city contends that the use of the word “reasonable” within the directive renders the directive discretionary because it requires the officer to use personal judgment. Both of these arguments, however, presuppose that the police response procedures imposed some sort of duty upon the officers — either ministerial or discretionary— for the benefit of Coley. Before addressing what type of duty to Coley the police response procedures may have created, it is necessary to ascertain whether they imposed any duty as to Coley at all.

The undisputed facts reveal that any duty owed by the police under the police response procedures was owed to Williams, not to Coley. On November 5, 2007, police responded to the home of Williams and Coley at 47 Bolton Street because Chapdelaine was brandishing a firearm in the front yard. The police were aware that a protective order had been issued to Williams prohibiting Chapdelaine from threatening or harassing her, entering her dwelling, or having any other contact with her. In fact, the police had been dispatched previously to the same address to respond to domestic disturbances between Chapdelaine and Williams. The 8:39 p.m. police response to 47 Bolton Street was a family violence matter because of the relationship between Williams and Chapdelaine and the outstanding protective order in which Williams was the named victim.

The directive in question, found beneath the heading “Victim Safety,” was promulgated to ensure the safety of victims. The directive makes reference to P.A. 86-337, entitled “An Act Concerning Family Violence Prevention and Response.” “The legislative history of [P.A. 86-337] makes clear that its primary purpose was to implement a comprehensive system that would most effectively intervene in instances of domestic violence to protect victims from further harm . . . creating many procedural safeguards and services, both for victims of family violence and offenders, that had not before been available in this state.” State v. Fernando A., 294 Conn. 1, 53-54, 981 A.2d 427 (2009). Any duty created through this statutory scheme would therefore be owed to the victim of the family violence. In this case that victim was Williams, not Coley. Because no directive created any duty to Coley, the acts undertaken by police officers on November 5, 2007, cannot serve as a basis for imposing liability upon them in connection with Coley’s death.

The judgment is affirmed.

In this opinion the other judges concurred.

       Throughout this opinion, Orville Coley will be referred to as the plaintiff, and Loma Coley will be referred to as Coley.

       See Martinelli v. Fusi, 290 Conn. 347, 350, 963 A.2d 640 (2009) (“[t]he record [is] viewed in the light most favorable to the nonmoving plaintiff for purposes of reviewing the trial court’s grant of summary judgment”).

       The plaintiffs complaint alleged seven separate acts of negligence, each of which may be categorized within one of these three generalized allegations.

       The order rendering summary judgment on behalf of the defendant states: “Under [§] 52-557n (a) (2) (B), the city is not liable for discretionary acts and the officers’ decision to try and find and arrest the domestic violence perpetrator and eventual shooter, was a discretionary act. The mother, shooting victim, was not an identifiable victim subject to imminent harm, the daughter was. [Section] 46b-38b (d) requires the officers to exercise reasonable . . . judgment which makes it discretionary.”

       The plaintiff contends that the city owed Coley a duty because the officers’ acts were ministerial. He does not challenge on appeal the court’s judgment that the officers’ acts did not fall within the identifiable person in imminent harm exception to discretionary act immunity. Furthermore, at oral argument before this court, the plaintiff conceded that the decision not to challenge on appeal the trial court’s determination that the exception did not apply was because Coley would not qualify as an identifiable person under that exception to discretionary act immunity. We therefore address only the issue of whether the officers’ acts created a ministerial or a discretionary duty.

       We review any allegations concerning compliance with the police response procedures pursuant to the police response procedures that were enacted on October 1, 1986, because those were the procedures in place on November 5, 2007. We note that those procedures subsequently have been amended.

       Although § 46b-38b (d) has been amended several times since the events giving rise to this appeal, because those changes have no bearing on the merits of this appeal, we refer to the current revision of the statute.

       Governmental acts are those acts that are performed by a municipality where the purpose is to benefit the public rather than a specific individual. See Gordon v. Housing Authority, 208 Conn. 161, 167-68, 544 A.2d 1185 (1988). Some courts frame the question of whether an act is governmental in terms of the public duty doctrine, determining whether the municipality had a duty to the general public or a duty to a specific individual. See id., 169-70. “The public duty doctrine recognizes that a fundamental element of any negligence action is a duty owed by the defendant to the plaintiff. Thus for one to recover from a municipal corporation in tort it must be shown that the duty breached was owed to the injured person as an individual and was not merely the breach of an obligation owed to the public in general [i.e., a duty to all is a duty to no one].” (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 335 n.13, 907 A.2d 1188 (2006). “ [Although the public duty doctrine provides the starting point of the analysis, distinctions between discretionary acts and ministerial acts are often controlling without regard to whether the duty is ascertained to be public or private.” (Internal quotation marks omitted.) Id., 334-35.

       At oral argument before this court, the plaintiff noted that the police response procedures were promulgated under statutory mandate. See General Statutes § 46b-38b (e).

       Even if P.A. 86-337 could somehow be construed to have imposed a duty upon officers Fancher and Freeto to remain at the scene on the day in question for the personal benefit of Coley, the language of the act expressly provides that the nature and extent of any such duty would necessarily have required the exercise of judgment and discretion by the officers. The act expressly required any officer not making an arrest at the scene of a domestic violence incident to remain at the scene “for a reasonable time until in the reasonable judgment of the officer the likelihood of further imminent violence has been eliminated.” P.A. 86-337, § 2 (d). Patently, an officer’s judgment as to the likelihood of further imminent violence at the scene of a domestic incident requires the officer to draw, among other things, upon both his specific knowledge of the recent incident and the parties involved in it, and his general familiarity with patterns of domestic violence. Such considerations may lead officers with different training and experience to reach a wide range of reasonable conclusions rather than compelling them to reach a single, unavoidable conclusion dictating a clear course of action with fixed parameters that no officer would have had the discretion not to take. Such a duty is therefore not a ministerial duty, for violation of which a municipal official lacks qualified governmental immunity, and thus may lawfully be sued.


author: DiPENTIMA, C. J.

text:
    300 STATE, LLC v. DIARMUID HANAFIN
    (AC 34042)
    DiPentima, C. J., and Bear and West, Js.
    Argued October 23, 2012
    officially released January 22, 2013

      Matthew G. Berger, for the appellant (defendant).

      Robert H. Weinstein, for the appellee (plaintiff).
   Opinion

DiPENTIMA, C. J.

The defendant, Diarmuid Hanafin, doing business as Hanafin’s, appeals from the judgment of the trial court rendered in favor of the plaintiff, 300 State, LLC. On appeal, the defendant claims that the court improperly awarded damages for his use and occupancy of the premises leased to him by the plaintiff because the plaintiff failed to introduce any evidence and the court did not find the reasonable value of the premises. We conclude that the court properly rendered judgment in favor of the plaintiff with respect to its breach of lease claim. Accordingly, we affirm the judgment of the trial court.

The court set forth the following findings of fact in its memorandum of decision. When the plaintiff acquired the title to the property located at 300/310 State Street in New London, the defendant occupied over 2000 square feet of the premises pursuant to a lease. At some point, the defendant stopped making the monthly rental payments. In January, 2010, the defendant made a lump sum payment of $10,000, but failed to make any further payments. The defendant vacated the premises in July, 2010.

The plaintiff commenced the present action alleging breach of lease, quantum meruit and unjust enrichment. In its first count, alleging breach of lease, the plaintiff claimed that it was damaged in the following ways: (1) lost rent, (2) additional related charges pursuant to the terms of the lease, (3) attorney’s fees, costs and expenses, (4) damage to the property and (5) use and occupancy due. The defendant filed an answer and a special defense that he was entitled to a setoff for the cost of purchasing and installing an HVAC system for the property. The plaintiff denied the allegations of the defendant’s special defense.

During the trial, the plaintiff presented evidence consisting of two billing notices totaling $47,474.99 owed by the defendant. The court determined that there was no evidence to support the charge for legal services in the amount of $1072.50 that was included in that total. The court then stated: “The defendant is found to be indebted to the plaintiff for the occupancy of the leased premises, including the related fees included in the agreement found to have existed, in the amount of $46,402.49, under both the First and Second Counts of the complaint.” The court further determined that the defendant had failed to introduce any evidence with respect to his special defense. The court also declined to award statutory interest to the plaintiff. This appeal followed.

The defendant argues that the court improperly awarded use and occupancy damages to the plaintiff. He contends that such an award was improper because there was neither evidence nor a finding made as to the reasonable value of the premises. As a prerequisite to this argument, the defendant maintains that the court could not have rendered judgment in favor of the plaintiff on both the breach of lease and quantum meruit counts because they- are inconsistent. We are not persuaded by the defendant’s contentions.

Before addressing the specifics of this appeal, it is helpful to identify certain legal principles. “[A] lease is a contract under which an exclusive possessory interest in property is conveyed. ... A lease is more than a mere license; it is a contract for the possession and profits of lands and tenements on the one side, and a recompense of rent or other income on the other; or, in other words, a conveyance to a person for life, or years, or at will, in consideration of a return of rent or other recompense. ... Its distinguishing characteristic is the surrender of possession by the landlord to the tenant so that he may occupy the land or tenement leased to the exclusion of the landlord himself.” (Citations omitted; internal quotation marks omitted.) Murphy, Inc. v. Remodeling, Etc., Inc., 62 Conn. App. 517, 522-23, 772 A.2d 154, cert. denied, 256 Conn. 916, 773 A.2d 945 (2001). “The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.” (Internal quotation marks omitted.) Pelletier v. Galske, 105 Conn. App. 77, 81, 936 A.2d 689 (2007), cert. denied, 285 Conn. 921, 943 A.2d 1100 (2008).

Quantum meruit is a doctrine allowing for recovery “based upon common law principles of restitution, [and is a] noncontractual [action] by which a party may recover despite the absence of a valid contract . . . .” (Internal quotation marks omitted.) Schirmer v. Souza, 126 Conn. App. 759, 766, 12 A.3d 1048 (2011). “The lack of a remedy under a contract is a precondition to recovery based on unjust enrichment or quantum meruit.” (Internal quotation marks omitted.) BHP Land Services, LLC v. Seymour, 137 Conn. App. 165, 169, 47 A.3d 950, cert. denied, 307 Conn. 927, 55 A.3d 569 (2012).

The defendant interprets the court’s judgment as awarding use and occupancy damages under both counts, and assumes that any finding of a breach of lease is improper as a result of the mutually exclusive nature of the breach of lease and quantum meruit counts alleged in the plaintiffs complaint. We recognize that a party “cannot be held hable simultaneously for breach of an express contract and an implied in law contract governing the same subject matter.” Laser Contracting, LLC v. Torrance Family Ltd. Partnership, 108 Conn. App. 222, 229, 947 A.2d 989 (2008); see also Russell v. Russell, 91 Conn. App. 619, 638, 882 A.2d 98 (unjust enrichment and breach of contract are mutually exclusive theories of recovery), cert. denied, 276 Conn. 924, 925, 888 A.2d 92 (2005); cf. Parnoff v. Mooney, 132 Conn. App. 512, 519, 35 A.3d 283 (2011) (claim of quantum meruit described as implied in law contract). A judgment in favor of a party on both an express and an implied in law contract, however, does not constitute reversible error in every instance. For example, in MD Drilling & Blasting, Inc. v. MLS Construction, LLC, 96 Conn. App. 798, 804, 902 A.2d 686 (2006), we concluded that “the plaintiff was entitled to judgment on the breach of contract and unjust enrichment claims as a result of the defendants’ default for failure to plead.” We stressed, however, that the plaintiff could not receive a double recovery. Id.; see also Stein v. Horton, 99 Conn. App. 477, 485, 914 A.2d 606 (2007) (parties may plead in alternative claims for breach of contract and unjust enrichment but entitled only to single recovery). Similarly, in Pleines v. Franklin Construction Co., 30 Conn. App. 612, 616, 621 A.2d 759 (1993), the trial court rendered judgment in favor of the plaintiff as to all three counts in its complaint alleging foreclosure of a mechanic’s lien, the existence of an express oral contract and unjust enrichment. We stated: “The defendants correctly note that the judgment on the third count [unjust enrichment] appears to be inconsistent with the judgment on the second count [oral contract] because proof of a contract ordinarily precludes the remedy of unjust enrichment. . . . Nevertheless, assuming arguendo that the judgment was improper, the error was harmless because there was sufficient evidence to support a judgment . . . under either theory. ” (Citations omitted; emphasis added.) Id.; see also Harley v. Indian Spring Land Co., 123 Conn. App. 800, 833 n.25, 3 A.3d 992 (2010) (same). We conclude, therefore, that under our case law, the court’s judgment for the plaintiff in the present case on its claims for breach of lease and quantum meruit did not constitute reversible error and is harmless because the plaintiff produced sufficient evidence to support the judgment under either count.

We now turn to the defendant’s contention that the court improperly found use and occupancy damages. As a corollary to this argument, the defendant contends that the court did not find a breach of lease. We conclude that the defendant’s reading and interpretation of the court’s judgment is fatally flawed. We start with our standard of review. “As a general rule, [orders and] judgments are to be construed in the same fashion as other written instruments. . . . The determinative factor is the intention of the court as gathered from all parts of the [order or] judgment. . . . The interpretation of [an order or] judgment may involve the circumstances surrounding [its] making .... Effect must be given to that which is clearly implied as well as to that which is expressed. . . . The [order or] judgment should admit of a consistent construction as a whole.” (Internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 91-92, 952 A. 2d 1 (2008); see also Eberhart v. Meadow Haven, Inc., 111 Conn. App. 636, 647, 960 A.2d 1083 (2008). “The interpretation of a trial court’s judgment presents a question of law over which our review is plenary.” Sosin v. Sosin, 300 Conn. 205, 217, 14 A.3d 307 (2011).

The key sentence in the trial court’s memorandum of decision is as follows: “The defendant is found to be indebted to the plaintiff for the occupancy of the leased premises, including the related fees included in the agreement found to have existed, in the amount of $46,402.49, under both the First and Second Counts of the complaint.” (Emphasis added.) In other words, the court found that the defendant breached the terms of the lease with the plaintiff and that the plaintiff had prevailed on its quantum meruit claim. The defendant interprets the court’s use of the phrase “for the occupancy of the leased premises” to mean “use and occupancy” in the context of General Statutes § 47a-3c. Section 47a-3c provides: “In the absence of agreement, the tenant shall pay the fair rental value for the use and occupancy of the dwelling unit.” The defendant then proceeds to argue that testimony was required to establish use and occupancy damages in the context of § 47a-3c.

We disagree with the defendant’s interpretation of the trial court’s memorandum of decision. We conclude that the court’s use of the phrase “occupancy of the leased premises” was not as a term of art with respect to § 47a-3c, but rather in relation to the defendant’s possession of the property at issue. This court has described the landlord-tenant relationship as “one in which there is an oral or written rental agreement between the parties containing the terms and conditions for the use and occupancy of the subject dwelling unit.” (Emphasis added; internal quotation marks omitted.) Allstate Ins. Co. v. Palumbo, 109 Conn. App. 731, 738, 952 A.2d 1235 (2008), rev’d on other grounds, 296 Conn. 253, 994 A.2d 174 (2010); see also 73-75 Main Avenue, LLC v. PP Door Enterprise, Inc., 120 Conn. App. 150, 152, 991 A.2d 650 (2010) (party entered into written lease for use and occupancy of commercial real estate). Additionally, the court described the property as the “leased premises,” thereby indicating that it was subject to a lease. Further, the court made a specific reference to the first count of the complaint, which alleged a claim of breach of lease. For these reasons, we conclude that the court found that the defendant breached the lease and awarded the plaintiff damages accordingly. The defendant’s sole claim on appeal, that there was no evidence and no finding as to the reasonable value of the premises for purposes of § 47a-3c, does not affect the basis of the court’s judgment with respect to count one of the complaint. Having determined that a lease existed and that the defendant was in breach thereof, there was no need for the court to find damages for use and occupancy. The defendant’s appeal, therefore, must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       “Quantum meruit and unjust enrichment are common-law doctrines that provide restitution, or the payment of money, when justice so requires. See Gagne v. Vaccaro, 255 Conn. 390, 401, 766 A.2d 416 (2001) . . . .” (Citations omitted.) United Coastal Industries, Inc. v. Clearheart Construction Co., 71 Conn. App. 506, 511-12, 802 A.2d 901 (2002). Both doctrines allow for damages to compensate a party for the money, services or goods of which it was deprived for the benefit of another. Id., 512; see generally Walpole Woodworkers, Inc. v. Manning, 307 Conn. 582, 587 n.9, 57 A.3d 730 (2012).

       The plaintiff presented the testimony of Jeremy Browning, an employee of Trio Properties, a property management company. Browning testified that his employment responsibilities consisted of leasing and showing rental suites, collecting rent, administering contracts for tasks such as snow plowing and garbage removal, and performing accounting duties. Browning stated that the defendant had paid rent in accordance with the terms of a lease and at some point stopped payment for rent, resulting in an outstanding balance owed to the plaintiff. We acknowledge, however, that the lease itself was not admitted into evidence. Last, we note that the defendant has not challenged the factual findings of the court as to the breach of lease claim.

       The defendant included a footnote indicating that although a plaintiff is required by Practice Book § 10-3 (a) to identify specifically any statute on which a claim in a complaint is grounded, the failure by the plaintiff to cite § 47a-3e is not fatal due to the discretionary nature of Practice Book § 10-3(a).

       “Under Connecticut law, use and occupancy, by definition, is an amount equal to fair rental value .... It is the amount to which the landlord is entitled after the rental agreement has been terminated . . . .” (Internal quotation marks omitted.) LeBlanc v. Tri-Town Shelter Services, Inc., 110 Conn. App. 118, 123, 995 A.2d 55 (2008); see also Sippin v. Ellam, 24 Conn. App. 385, 392, 588 A.2d 660 (1991) (situations contemplated by § 47a-3c include recovery for use and occupancy when there is absence of lease agreement or termination of valid lease agreement by notice to quit); New Haven v. Mason, 17 Conn. App. 92, 95 n.2, 550 A.2d 18 (1988) (“[t]he term ‘use and occupancy’ is a term of art that has been embodied in ... § 47a-3c, providing the remedy of use and occupancy payments absent a rental agreement”); Rivera v. Santiago, 4 Conn. App. 608, 611, 495 A.2d 1122 (1985) (use and occupancy is amount to which landlord entitled after rental agreement has been terminated but while tenancy at sufferance exists).

       General Statutes § 47a-3c, by its express terms, is limited to the use and occupancy of a dwelling unit. General Statutes § 47a-l (c) defines a dwelling unit as “any house or budding, or any portion thereof, which is occupied, is designed to be occupied, or is rented, leased or hired out to be occupied, as a home or residence of one or more persons.” Thus, § 47a-3c applies only to residential premises. The premises in this case are commercial.